WORKS  OF   JOHN   C.  WAIT 

,  PUBLISHED    BY 

JOHN  WILEY  &   SONS. 


Engineering  and  Architectural  Jurisprudence. 

A  Presentation  of  the  Law  of  Construction  for 
Engineers,  Architects,  Contractors,  Builders,  Pub- 
lic Officers,  and  Attorneys  at  Law.  8vo,  985 
pages,  cloth,  $6.00  ;  sheep,  $6.50. 

The  Law  of  Operations  Preliminary  to  Construc- 
tion in  Engineering  and  Architecture. 

Rights  in  Real  Property.  Boundaries,  Easements, 
and  Franchises.  For  Engineers,  Architects,  Con- 
tractors, Builders,  Public  Officers,  and  Attorneys 
at  Law.  8vo,  712  pages,  cloth,  $5.00  ;  sheep,  $5.50. 

The  Law  of  Contracts. 

A  Text-book  for  Technical  Schools  of  Engineer- 
ing and  Architecture.  8vo,  346  pages,  cloth,  $3.00. 


.  THE 

LAW  OF  OPERATIONS 

PRELIMINARY  TO  CONSTRUCTION 

IN 

ENGINEERING     AND    ARCHITECTURE. 

RIGHTS  IN  REAL  PROPERTY. 
BOUNDARIES,  EASEMENTS,  AND  FRANCHISES. 

FOR 

ENGINEERS,  ARCHITECTS,  CONTRACTORS, 

BUILDERS,  PUBLIC  OFFICERS,  AND 

A TTORNEYS  AT  LAW. 


BY 
JOHN  CASSAN  WAIT,  M.C.E.,  LL.B., 

(M  C.E.  CORNELIA;  LL.B.  HARVARD,) 

Attorney  and  Counsellor  at  Law  and  Consulting  Engineer;  Member  of  the  American  Society  of 

CM  Engineers;  Sometime  Assistant  Professor  of  Engineering,  Harvard  University; 

Author  of  "Engineering  and  Architectural  Jurisprudence-" 


FIRST 

SECOND    TFOUSA2fD., 


NEW  YORK: 

JOHN    WILEY   &   SONS. 
LONDON  :   CHAPMAN   &   HALL,   LIMITED. 

1908. 


7   <M 

It/ 3 

Engines 
Library 


Copyright,  1900, 

BY 

JOHN  CASSAN  WAIT. 


Unhurt  BrumraouZi  an&  (Eompang 


PREFACE. 


THIS  book  might  consistently  have  been  entitled  "Engineering  and  Archi- 
tectural Jurisprudence,"  and  have  made  a  volume  of  an  earlier  work  published 
under  that  name  by  the  author.  In  fact  a  large  part  of  the  material  from  which 
this  book  has  been  prepared,  was  collected  for  the  earlier  book,  and  would  have 
been  embodied  in  it  had  not  its  size  forbidden.  The  earlier  book  was  a  pres- 
entation of  the  law  of  construction,  while  this  treats  of  the  law  attending  those 
operations  which  precede  construction.  Such  operations  are  those  required 
for  the  determination  of  data  and  information  which  should  be  obtained  before 
a  project  is  undertaken.  They  comprise  the  preliminary  surveys  and  investi- 
gations to  determine  the  boundaries,  the  areas,  the  elevations,  the  quantities, 
and  the  other  physical  conditions  and  phenomena  that  exist  and  from  which 
the  cost,  resources,  and  revenues  of  the  enterprise  are  estimated.  They  include 
an  estimate  of  the  value  of  the  natural  products,  forces,  and  benefits  to  be 
appropriated  or  utilized  in  the  undertaking,  and  a  determination  of  the  rights 
and  powers  to  be  secured,  and  of  the  duties  and  obligations  which  attend  the 
carrying  out  of  the  enterprise.  These  are  essentially  things  to  be  determined 
before  construction  work  may  be  commenced,  but  the  misfortune  is  that  they 
are  too  frequently  overlooked  until  the  time  for  their  favorable  acquisition  has 
passed,  when  they  are  secured  at  great  cost  and  expense. 

The  necessity  for  such  a  work  as  the  present  one  may  not  be  at  once  appar- 
ent, and  while  the  author  has  no  apologies  to  make  for  its  presentation,  he  has 
thought  it  expedient  to  explain  the  occasion  for  a  combined  treatment  of  the 
subjects  of  law  and  construction,  and  particularly  the  utility  of  a  work  setting 
forth  the  legal  difficulties  met  with  in  Operations  Preliminary  to  Construction. 
The  book  has  been  written  for  engineers,  architects,  and  those  persons  engaged 
in  the  promotion,  organization,  construction,  and  operation  of  projects  usually 
Tnbraced  within  the  general  term  of  public  improvement,  or  of  private  enter- 
prises of  such  magnitude  as  to  be  of  public  interest,  first  and  foremost  because 
there  is  no  book  published  in  English  covering  the  same  ground. 

Whether  the  reader  be  an  engineer,  an  architect,  a  builder,  a  contractor, 
or  simply  the  mechanic  who  puts  his  handiwork  into  the  structure,  he  acts  in 
the  capacity,  and  performs  the  duties,  of  an  engineer,  and  practices  the  honor- 
able profession  of  engineering ;  therefore  the  author  may  be  excused  for  any 

iii 

268701 


IV  PREFACE. 

seeming  neglect  of  the  distinguished  profession  of  architecture  or  of  the  great 
and  respected  vocation  of  contracting  and  building,  or  of  the  numerous  indus- 
trial trades,  if  he  classes  them  all  in  the  profession  of  engineering.  All  are 
required  to  observe  certain  duties  and  functions  that  the  law  imposes  and 
which  are  essential  to  the  mutual  protection  of  men,  one  to  another.  Among 
these  duties  are  those  of  a  professional  man  or  public  officer  who  undertakes  to 
serve  those  who  command  his  skill  and  knowledge,  also  those  of  persons  who 
undertake,  either  by  an  express  agreement  or  by  mere  contract  of  hiring,  to  do 
certain  things  for  a  stipulated  remuneration,  whether  it  be  in  a  large  sum  of 
money  or  in  the  simple  day- wages  of  the  mechanic  or  day-laborer.  The  under- 
taking to  do  or  perform  such  services  is  a  representation  on  the  part  of  the 
employee  that  he  is  qualified  and  skilled  to  do  or  perform  what  is  required  of 
him  to  the  same  extent  and  character  as  is  usual  in  the  profession  or  trade 
which  he  follows.  The  consideration  of  these  duties  that  are  owing  to  an 
employer  is  one  of  the  things  which  prompted  the  preparation  of  this  work. 

It  is  maintained  by  the  author  that  the  same  duty  rests  upon  an  engineer  or 
mechanic  to  serve  his  employer  that  is  due  from  a  physician  to  his  patient  or 
from  a  lawyer  to  his  client.  He  is  under  the  same  liability  for  neglect  to 
exercise  proper  skill  and  care,  and  responsible  to  the  same  extent  for  misrepre- 
sentations as  to  qualifications  which  he  does  not  possess.  This  rule  holds 
whether  the  service  be  in  construction,  in  healing,  or  in  litigation.  The  pro- 
fessional man  owes  his  best  efforts  to  attain  the  highest  results.  The  necessity 
of  observing  sanitary  precautions  in  engineering  and  architecture  has  long  been 
recognized,  and  the  laws  of  sanitation  have  been  the  subject  of  study  and  appli- 
cation in  engineering  for  many  years.  To  neglect  so  important  a  subject 
would  be  a  breach  of  professional  practice  and  would  ruin  the  reputation  of 
any  engineer  or  architect,  and  the  author  maintains  that  it  is  equally  incum- 
bent upon  him  to  observe,  understand,  and  apply  the  principles  of  the  law. 
To  attain  the  highest  and  most  economical  results,  the  cost,  delays,  and  vexa- 
tions of  legal  controversies  should  be  provided  against  by  a  proper  regard  for 
the  law,  in  the  same  manner  that  the  conditions  and  dangers  that  threaten 
health,  convenience,  and  comfort  are  met  by  a  due  consideration  of  the  science 
of  medicine.  Upon  the  practice  of  civil  engineering  and  architecture  depend 
the  beauty,  strength,  stability,  and  utility  of  works  ;  upon  the  exercise  of  sani- 
tary engineering  depend  the  fitness,  healthfulness,  security,  and  habitability  of 
a  structure,  or  even  of  a  community  ;  and  upon  the  application  of  legal  engi- 
neering depend  their  peaceable  possession,  occupation,  and  operation. 

Engineering  in  the  past  has  been  chiefly  occupied  in  applying  science  to 
the  forces  and  materials  of  nature,  to  the  acquirement  of  worldly  gain  and 
profit.  She  has  appropriated  everything  necessary  to  develop,  improve,  and 
utilize  the  gifts  of  nature,  and  to  apply  them  to  the  necessities  and  convenience 
of  humankind  at  the  least  expense  of  labor,  time,  and  money.  The  sciences 
have  been  her  handmaids,  and  the  mineral  and  vegetable  products  of  the 


PREFACE.  V 

earth  her  materials  ;  and  they  have  been  the  chief  subjects  of  study.  She  has 
been  occupied  in  the  creation  of  the  structure,  and  not  in  its  maintenance  and 
operation.  Indeed  she  has  availed  herself  of  anything  and  everything  to  pro- 
mote her  advancement,  and  has  incorporated  almost  every  scientific  subject  and 
every  mechanical  trade  within  her  calling.  Subject  after  subject  has  been  taken 
tip  and  pursued  to  assist  her  growth  and  development,  and  specialties  and 
branches  have  been  created  which  have  themselves  become  professions  and 
businesses.  That  this  would  be  so,  was  recognized  at  a  very  early  date,  when 
Sir  John  Rennie  (1761-1821),  the  distinguished  English  engineer,  said: 
"  Without  presuming  to  underestimate  the  merits  and  importance  of  other  pro- 
fessions, that  of  the  civil  engineer  may  be  said  to  embrace  everything  which 
can  tend  to  the  promotion  of  the  comfort,  the  happiness,  and  civilization  of 
mankind."  Certainly  a  consideration  of  the  legal  questions  presented  in  con- 
struction work  was  one  of  those  things  which  the  distinguished  engineer  had 
in  mind. 

As  well  might  an  engineer,  an  architect,  or  a  builder  have  a  physician  accom- 
pany him  for  advice  as  to  sanitary  precautions  and  arrangements  in  his  works 
as  to  require  the  elbow-counsel  of  a  lawyer  to  explain  the  legal  status,  rights, 
and  liabilities  attending  their  construction  and  operation.  A  few  decades  since 
he  could  as  reasonably  have  asked  for  the  attendance  and  assistance  of  a  mason, 
carpenter,  or  blacksmith  to  instruct  him  in  the  qualities  and  peculiarities  of  the 
materials  of  construction  employed,  or  in  their  proper  use  and  application,  as 
he  can  now  justify  his  incompetence  to  perform  the  ordinary  legal  duties  of 
his  profession.  His  duties  include  everything  that  conduces  to  the  proper,  per- 
fect, and  economical  construction  of  the  work,  and  that  shall  secure  the 
greatest  benefit  to  his  employer  with  the  least  trouble  and  cost. 

Several  minds  cannot  work  together  with  the  clearness,  nor  decide  with  the 
promptness  as  well  as  the  unanimity,  that  attend  the  operations  of  one  master 
mind.  From  the  earliest  times  it  has  been  recognized  that  engineering  opera- 
tions should  and  must  be  under  the  direction  and  supervision  of  one  head  or 
central  authority,  which  necessitates  that  that  head  should  be  qualified  to  at 
least  understand  and  judge  of  the  many  questions  presented  for  its  determina- 
tion. For  the  determination  of  technical  and  subtle  questions,  counsel  of 
specialists,  whether  of  law  or  medicine,  may  be  sought  and  obtained,  but  even 
in  such  cases  the  final  determination  should  be  made  only  after  a  comprehen- 
sive and  general  consideration  of  the  whole  subject-matter  by  one  master 
mind. 

This  work,  together  with  the  earlier  one  on  the  Law  of  Construction,  is 
intended  to  give  to  the  engineering  professions,  including  all  those  vocations 
and  trades  engaged  in  construction  work,  that  general  knowledge  of  legal 
engineering  which  is  so  essential  to  the  complete  success  of  their  undertakings 
and  to  the  highest  attainment  of  professional  skill. 

All  engineering  and  construction  operations  deal  with  land  or  real  prop- 


VI  PREFACE. 

erty,  and  this  book  is  really  a  treatment  of  the  Law  of  Real  Property,  restricted 
to  such  property  and  the  rights  inherent  therein  as  are  met  or  employed  in 
engineering  and  architectural  construction.  Property  is  the  subject-matter  of 
the  engineer's  creation.  All  engineering  works  require  the  appropriation  and 
acquisition  of  property  fixed  and  movable,  corporeal  and  incorporeal.  The 
treatment  does  not  embrace  the  law  of  conveyancing  or  titles,  nor  the  law  of 
inheritance,  but  the  law  of  property  as  applied  to  the  materials  and  phenomena 
with  which  the  engineer  deals,  viz.,  those  which  are  the  vehicles  of  nature's 
forces  and  those  minerals  and  metals  employed  to  arrest,  transmit,  conserve, 
and  utilize  such  forces. 

The  first  consideration  of  an  improvement  is  its  location.  What  piece  of 
property  will  best  suit  the  necessity  and  convenience  of  the  work  ?  What  can 
be  obtained  for  the  purposes  and  what  rights  and  interests  therein  shall  be 
secured  ?  What  is  the  relative  importance,  what  the  value,  of  the  various  con- 
ditions, rights,  and  interests  that  are  presented  ?  What  is  their  relative  weight 
and  importance  ?  These  questions  arise  at  every  stage  of  progress,  in  the 
designing,  construction,  and  maintenance  of  works.  If  the  design  is  unalter- 
able, rights  and  interests  must  be  sought  and  secured  which  shall  satisfy  every 
need  and  bear  every  servitude  imposed  or  likely  to  grow  out  of  the  project. 
If,  as  is  frequently  the  case,  the  property  or  site  for  the  works  has  been 
acquired  before  the  plan  of  the  project  has  been  perfected,  then  the  plans  are 
required  to  be  restricted  so  as  to  keep  within  the  rights  acquired  in  such  prop- 
erty. The  plans  must  also  conform  to  ordinances  and  statutes,  and  must  not 
create  burdens  which  the  property  will  not  bear,  or  which  the  rights  of 
coterminous  owners  or  the  public  will  not  tolerate.  Such  important  technical 
questions  should  not  be  entrusted  to  half-informed  and  one-sided  men.  An 
engineer  cannot  take  time  to  instruct  a  lawyer  in  the  mysteries  of  science  and 
mathematics,  and  place  before  him  a  lifetime's  experience,  to  enable  him  to 
determine  some  simple  question  in  law,  which  principles  of  law  can  be 
acquired  by  a  few  months'  leisure  reading  on  the  law  of  property  and  con- 
tracts. With  the  engineer  rests  the  obligation  of  making  this  combination, 
for  lawyers  will  not.  The  technical  training  should  be  united  with  a  liberal 
knowledge  of  the  law  of  property  and  contracts,  so  that  the  determination  may 
>be  the  result  of  one  effort,  by  one  mind,  and  to  one  end  and  purpose. 

It  is  submitted  that  almost  every  act  and  undertaking  in  construction 
work,  outside  of  the  ministerial  and  manual  duties  which  may  be  delegated  to 
servants  and  assistants,  requires  the  understanding  and  exercise  of  legal  and 
judicial  functions  which  may  not  be  performed  without  some  knowledge  of  the 
law.  It  is  to  men  possessed  of  these  qualifications  that  the  direction  of  work 
is  given  and  to  whom  the  management  of  enterprises  is  committed.  From 
the  first  conception  of  a  project  to  the  last  payment  under  the  contract,  legal 
questions  are  constantly  presenting  themselves  for  immediate  determination, 
and  though  such  decision  may  not  be  final  it  often  defines  the  position  to  be 


PREFACE.  Vll 

taken  and  defended.  Generally  this  knowledge  so  essential  to  success  has 
been  acquired  by  observation,  reading,  and  experience.  The  general  and  tech- 
nical schools  have  not  taught  it,  and  the  lack  of  it  has  been  a  serious  drawback 
to  the  rapid  rise  of  technically  educated  young  men.  Capitalists  and  com- 
panies have  been  cautious  in  confiding  important  questions  and  works  to 
young  men,  and  older  though  confessedly  less  accomplished  engineers  have 
been  engaged  because  they  have  had  experience — not  because  they  were  better 
informed  in  construction  or  were  more  competent  to  design  and  superintend 
works,  but  because  they  had  studied  and  observed  the  legal  and  commercial 
features  attending  them. 

It  is  not  the  mere  competency  to  design,  draft,  lay  out,  and  superintend 
work  that  gives  reputation  to  an  engineer.  This  is  work  done  by  assistants 
who  are  comparatively  unknown  to  the  profession.  The  men  who  control  and 
direct  the  work  are  men  of  broad  ideas  and  business  capacity,  whom  com- 
panies and  proprietors  expect  will  look  after  their  business  conservatively  and 
hold  their  investments  secure  and  profitable.  This,  it  is  contended,  depends 
largely  upon  their  business  and  legal  training.  Without  this  training  graduate 
engineers  find  their  many  technical  qualifications  without  weight  in  the  esti- 
mation of  their  employers,  and  they  feel  it  keenly  when  men  with  a  general 
education  are  taken  from  the  ranks  of  clerk  and  office  help  and  are  given 
direction  of  work  as  superintendents  and  managers  wholly  on  account  of  their 
knowledge  of  the  business  policy  which  directs  the  financial  operations  and 
because  they  know  from  association  and  study  how  to  decide  ordinary  ques- 
tions of  business  and  law. 

The  favor  with  which  "Engineering  and  Architectural  Jurisprudence" 
was  received  is  sufficient  encouragement  to  the  author  and  the  publisher  to 
offer  this  book,  even  though  there  be  not,  in  the  legal  profession,  so  apparent 
a  need  of  it.  There  are  good  books  upon  the  subjects  treated  in  this  volume, 
and  more  complete  compilations  upon  the  topics  presented ;  but  the  present, 
like  the  earlier,  work  has  been  prepared  with  special  reference  to  the  wants  of 
surveyors,  engineers,  architects,  contractors,  builders,  and  public  officers,  and 
is  an  exposition  of  the  law  as  applied  to  the  natural  subjects,  materials,  and 
phenomena  attending  industrial  operations.  It  is  offered  primarily  to  those 
engaged  in  the  industrial  professions  who  are  not  familiar  with  the  law,  but 
whose  duties  require  that  they  should  have  some  knowledge  of  the  rights  in- 
herent to  the  conditions  which  are  frequently  presented  to  them  in  their 
work ;  and  secondarily  to  lawyers  in  that  it  presents  the  views  and  conclusions 
of  the  author  based  upon  twelve  years' active  experience  in  engineering  and 
construction  work,  supplemented  by  an  extended  practice  in  the  law  and  a 
close  study  of  the  cases  presented.  -The  book  is  too  small  to  contain  an  ex- 
haustive treatment  of  the  law  upon  the  subjects  presented,  and  although  there 
are  cited  some  four  thousand  original  cases  besides  a  large  number  of  refer- 
ences to  text-books,  it  is  not  offered  to  the  profession  of  law  as  a  digest  from 


VI 11  PREFACE. 

which  to  prepare  briefs  or  for  general  case-hunting.  The  authorities  have 
been  cited  in  almost  every  instance  mainly  to  give  assurance  that  the  writer  is 
justified  in  his  statements  of  the  law,  and  to  enable  the  reader,  if  he  be  not  a 
lawyer,  in  case  of  litigation  to  direct  the  attorney  to  such  authorities. 

The  author  owes  an  apology  to  the  legal  profession  for  the  promiscuity  of 
the  citations  made,  and  regrets  that  his  time  and  opportunity  have  not  per- 
mitted him  to  give  in  all  instances  references  to  the  official  state  reports. 
This  is,  in  a  degree,  compensated  by  many  references  to  notes  in  the  maga- 
zines, digests,  encyclopedias,  and  unofficial  reports  referred  to,  which  fre- 
quently contain  valuable  collections  of  cases  upon  topics  of  the  law  kindred 
to  the  case  reported,  or  to  the  subject  under  discussion.  In  many  instances 
a  reference  to  the  Table  of  Cases  will  give  to  the  reader  the  official  state  report 
in  which  the  case  is  to  be  found. 

The  author  is  fully  aware  that  he  will  provoke  criticism  from  the  members 
of  the  legal  profession  for  any  attempts  to  specialize  in  the  law,  and  particularly 
for  presenting  it  within  the  reach  of  the  layman,  it  being  the  avowed  policy  of 
the  honorable  profession  of  law  to  condemn  every  attempt  to  dispense  law  to 
the  masses  or  to  make  any  division  of  it.  To  the  minds  of  such  persons  he 
would  recall  the  old  maxims  promulgated  and  maintained  by  the  legal  profes- 
sion that  ' '  Every  man  is  supposed  to  know  the  law  "  and  that  ' '  Ignorance  of 
the  law  excuses  no  man,"  and  that  such  a  policy  is  in  keeping  with  the  old 
practice  of  the  Roman  emperor  Caligula  (12-14  A.  D.),  who,  according  to 
Dion  Cassius,  wrote  his  laws  in  very  small  characters  and  hung  them  upon 
high  pillars,  the  more  effectually  to  ensnare  the  people.  It  is  very  well  for 
lawyers,  either  as  legislators  or  as  judges  upon  the  bench,  to  promulgate  the 
fiction  that  all  men  are  supposed  to  know  the  law  and  then  to  discourage  and 
condemn  each  and  every  effort  to  educate  the  people  (or  a  very  intelligent 
class  thereof)  in  the  law.  The  same  objection  was  made  to  the  preparation 
.and  publishing  of  "Engineering  and  Architectural  Jurisprudence,"  the  argu- 
ment being  made  that,  instead  of  assisting  laymen  to  avoid  litigation,  the 
effect  of  the  book  would  be  to  multiply  lawsuits,  and  that  engineers,  contract- 
ors, and  builders,  by  attempting  to  be  their  own  attorneys,  would  lose  the 
efficient  services  of  lawyers,  to  their  own  great  loss.  The  author  feels  assured 
that  neither  misfortune  resulted,  but  that,  on  the  contrary,  the  book  has  done 
a  great  service  in  avoiding  litigation  and  in  protecting  the  interests  of  all  con- 
cerned. To  the  author  all  these  arguments  are  seemingly  plausible  statements 
of  a  well-defined  policy,  developed  by  the  keenest  insight  of  the  lawyers' 
selfish  interests.  The  profession  of  law  is  and  always  has  been  the  most  exclu- 
sive of  professions,  and  is  to-day  most  jealous  of  any  of  the  modern  tenden- 
cies to  specialize,  and  for  that  reason  it  is  the  most  conservative  and  the  least 
progressive.  To  insist  that  it  is  necessary  for  a  lawyer  to  know  criminal  law  in 
order  to  practice  in  the  surrogate's  court  or  in  the  United  States  courts  in 
patent  and  copyright  cases  is  still  maintained  by  some  eminent  lawyers.  For 


PKEFA  CE.  Wt 

a  mechanical  engineer,  who  desires  to  know  something  of  patent  law,  to  be 
required  to  study  all  branches  of  the  law,  is  as  foolish  as  it  is  to  maintain  that 
an  engineer  who  wishes  to  know  something  of  the  law  of  property  and  of  the 
rights  incident  thereto  must,  before  he  can  apply  his  knowledge  to  his  every- 
day duties  and  the  consideration  of  questions  arising  in  his  profession,  acquire 
a  thorough  and  comprehensive  knowledge  of  law.  Such  arguments  may  be 
true  for  the  country  practitioner  who  must  attend  every,  ailment  of  his  client, 
but  they  have  no  force  in  our  great  cities,  where  the  large  interests  involved 
and  the  sharp  competition  met,  require  the  physician,  the  lawyer,  and  the 
industrialist  to  acquire  the  highest  possible  skill  and  efficiency  in  the  particular 
lines  in  which  he  labors. 

Another  object  of  this  book  is  to  give  to  engineers  and  parties  engaged  in 
construction  a  sufficient  insight  into  the  law  pertaining  to  the  subject  and 
within  the  purview  of  engineering,  to  enable  them  to  decide  what  facts  are 
essential  to  the  proper  and  intelligent  presentation  of  a  case  to  a  judicial 
tribunal  to  secure  a  favorable  determination  of  the  legal  questions  involved. 
Usually  the  engineer,  contractor,  or  builder  is  the  only  person  upon  the  work 
who  is  familiar  with  the  conditions  and  events  that  prevail  during  its  con- 
struction. In  fact  it  is  the  exception  that  the  attorney  ever  visits  the  scene  of 
operations.  To  enable  the  engineer,  architect,  or  contractor  to  protect  his 
rights,  it  is  very  essential  that  he  should  know  what  those  rights  are,  and.  to 
know  what  events  to  record,  what  protests  to  rriake,  and  what  proofs  to 
accumulate  and  present  to  make  out  his  case.  The  author  will  feel  that  he 
has  done  a  good  service  to  the  industrial  professions  if  he  has  made  such  a 
presentation  of  the  law  as  will  enable  the  readers  of  this  work  thus  to  fortify 
their  rights  and  interests. 

Two  considerations  the  author  would  bring  to  the  attention  of  the  reader 
which  were  presented  in  the  preface  of  the  earlier  work  above  mentioned, 
viz.,  that  "it  must  not  be  inferred  that  an  engineer  can,  by  a  few  weeks  or 
months  of  study  of  law-books,  undertake  the  practice  of  law  or  conduct  his 
own  cases  in  court,  or  even  give  advice  in  regard  to  matters  of  law.  The 
author  wishes  expressly  to  disclaim  any  such  purpose  in  the  preparation  of 
this  work.  The  lay  reader  should  keep  constantly  in  mind  that  this  work  is 
not  intended  to  enable  him  to  go  into  court  to  defend  an  action  at  law  or  to 
prosecute  a  claim,  but  is  written  primarily  to  assist  him  in  avoiding  trouble 
and  litigation,  and  to  aid  him  in  protecting  his  employer's  and  his  own  rights 
when  they  are  assailed.  If  a  man's  rights  are  usurped,  he  had  best  consult  a 
man  who  makes  some  profession  of  knowing  what  his  rights  and  liabilities 
are  :  if  they  involve  his  spiritual  as  well  as  his  legal  status,  he  will  consult  his 
pastor ;  and  if  there  be  questions  involving  engineering  and  architecture,  he 
may  reasonably  be  expected  to  consult  his  engineer  or  architect. 

"  It  is  hoped  that  the  book  will  fulfill  another  mission — that  of  guiding 
and  strengthening  the  younger  and  inexperienced  members  of  the  industrial 


&  PREFA  CE. 

professions  in  a  proper  understanding  and  appreciation  of  business  and 
business  relations.  Young  men  in  the  engineering  and  architectural  profes- 
sions often  obtain  in  their  technical-school  training  a  contracted  view  of  their 
professional  duties  and  labors.  They  are  likely  to  narrow  their  professional 
work  to  the  ministerial  duties  of  the  draft  ing -room,  the  shop,  or  the  field. 
Too  many  well-trained  and  educated  men  remain  in  the  shop  or  drafting- 
room,  while  less  skillful  men  from  the  counting-room  and  office,  but  with  a 
good  business  experience,  become  superintendents,  managers,  and  presidents 
of  the  concerns  employing  them.  The  education  of  an  engineer  should  fit 
him  for  a  Jiigher  sphere  than  that  of  a  delineator  of  lines.  Supplemented  with 
a  good  business  experience,  his  training  eminently  fits  him  for  the  direction 
and  superintendence  of  large  works  ;  and  that  is  his  proper  field.  If  this  book 
cultivates  in  young  men  a  better  appreciation  of  business  relations  and  business 
principles,  and  a  due  sense  of  their  duties,  liabilities,  and  responsibilities,  one 
of  its  chief  missions  is  accomplished." 

The  completion  of  this  book  has  been  delayed  by  professional  work  which 
has  increased  in  volume  as  each  year  and  month  have  passed  by,  until  the 
author,  and  the  publisher,  too,  almost  despaired  in  their  hopes  of  seeing  it  in 
print,  Then  came  the  author's  appointment  as  Assistant  Corporation  Counsel 
to  the  City  of  New  York,  since  which  time  he  has  been  simply  overwhelmed 
by  .the  work  of  that  office,  together  with  what  has  been  required  to  conclude 
the  book.  Its  completion  has  been  accomplished  only  by  heroic  efforts  and 
by  the  most  industrious  use  of  the  hours  of  the  night.  In  fact  the  work  from 
the  beginning  has  been  compiled  and  prepared  in  extra  hours  that  the  author 
has  conserved  from  a  very  busy  life,  there  having  been  no  time  in  its  prepara- 
tion during  which  he  has  not  been  in  active  professional  work.  Some  errors 
may  reasonably  be  expected  under  the  circumstances,  and  for  such  the  author 
begs  the  indulgence  of  his  readers. 

Thes  author  desires  to  acknowledge  his  indebtedness  to  several  of  his  asso- 
ciates for  valuable  assistance  rendered  in  the  arrangement  and  preparation  of 
four  or  five  of  the  shorter  chapters :  to  Mr.  Newell  Lyon  in  the  preparation  of 
Chapters  XXIII  and  XXIV,  and  to  Mr.  James  B.  Cauthers  in  the  preparation 
of  Chapters  IV  and  XXXV,  both  gentlemen  having  been  associated  with  the 
author  in  the  practice  of  law  at  the  time  ;  and  also  to  Mr.  F.  W.  Cnrpenter, 
C.E.,  who  gave  valuable  suggestions  after  reading  the  manuscript  before  it  was 
sent  to  the  printer.  The  author  wishes  also  to  mention  the  efficient  and 
faithful  services  of  his  stenographer,  Miss  Katharine  J.  Cusack,  whose  assistance 
and  untiring  interest  in  the  preparation  and  completion  of  the  book  have  been 
most  commendable. 

38  PARK  Row,  NEW  YORK, 
August  15,  1900. 


CONTENTS. 


PART    I. 

PROPERTY.     ESTATES  IN,  AND    TITLE    TO,  REAL   PROPERTY. 


CHAPTER  I. 

INTRODUCTION.      PROPERTY  DEFINED. 
SECTION  PACK 

1.  Introduction  .• I 

2.  Definition  of  Property 3 

3.  Real  and  Personal  Property 4 

4.  Land  5 

5.  Use  of  the  Word  '*  Land  " 5 

6.  Personal  Property 6 

7.  Fixtures  8 

8.  Agreements  in  Regard  to  Fixtures 9 

CHAPTER  II. 

OWNERSHIP  OF  LANDS.      ESTATES. 

11.  Estates  13 

12.  Estate  of  Freehold 13 

13.  Estate  of  Inheritance .14 

14.  Estate  in  Fee  Simple 14 

15.  Estates  Tail 14 

16.  Estates  for  Life 15 

17.  Dower,  Curtesy,  and  Homestead 16 

18.  An  Estate  for  Years 17 

19.  Description  of  Premises  in  a  Lease 17 

20.  Estate  at  Will 18 

21.  Estate  at  Sufferance 18 

22.  Estate  in  Possession — Estate  in  Expectancy 18 

23.  Estate  in  Reversion , 19 

24.  Estate  in  Remainder. 19 

25.  Joint    Estate 20 

26.  Estate  in  Severalty 21 

27.  Estates   on  Condition — Mortgages 21 

28.  Partial    Estates 21 

29.  Incorporeal  Property 21 

xi 


Xll  CONTENTS. 

CHAPTER  III. 

TITLE  TO   PROPERTY.      HOW  ACQUIRED. 

SECTION  PAGK 

31.  Acquisition  of  Real  Property 23 

32.  Title  Acquired  without  Consent  of  Former  Owner. 23 

33.  Title  Acquired  with  Assistance  of  Former  Owner "25 

34.  Who  May  Hold  and  Own  Lands 25 

35.  Partnership's  Interest  in  Realty. 26 

36.  Interest  of  Corporation  in  Realty 27 

CHAPTER  IV. 

CONVEYANCES   OF    LAND.      ESSENTIAL   ELEMENTS   OF   DEEDS. 

41.  Necessary  Elements  of  a  Deed 29 

42.  Proper    Parties 29 

43.  Subject-matter,  or  Thing  to  be  Conveyed 30 

44.  The   Consideration 30 

45.  Execution   30 

46.  Operative  Words  of  Conveyance 32 

47.  Alterations 33 

48.  Fraud  and  Duress 33 


PART   II. 

RIGHTS  AND  PRIVILEGES  INCIDENT  TO  OWNERSHIP  OF  REAL 
PROPERTY.  PROTECTION  OF,  AND  INTERFERENCE  WITH, 
RIGHTS  IN  FLUIDS.  THE  SUPPLY  AND  USE  OF  WATER,  OIL, 
GAS,  AND  ELECTRICITY.  RIGHTS  IN  NAVIGABLE  WATERS. 
INTERFERENCE  WITH  PROPERTY  RIGHTS  BY  SURVEYORS. 
TRESPASS. 


CHAPTER  V. 

WATER.      RIPARIAN   OWNERS.      APPROPRIATION   OF  WATER. 

51.  Riparian  Owners 34 

52.  Rights  and  Liabilities  of  Persons  Holding  under  Riparian  Owners 35 

53.  Riparian  Rights  Belong  Only  to  Persons  Entitled  to  Possession 35 

54.  Rights  of  the  Public  and  of  Riparian  Owners  to  Waters 36 

55.  Riparian  Rights  Incident  to  Ownership  of  Land 37 

56.  Rights  in  Streams  are  Common  and  Not  Divisible 37 

57.  Appropriation  of  Waters  by  Riparian  Owners — Extent  of  Use 38 

58.  Regard  Must  be  Paid  to  Use  of  Waters  by  Other  Riparian  Owners 38 

59.  Reasonable  Use  of  Waters — How  Determined 39 

60.  Water  for  Domestic  Purposes 39 

61.  Appropriation  of  Waters  by  Non-riparian  Owners  or  for  Non-riparian 

Purposes    40 

62.  Appropriation  of  Waters  for  Municipal  Water-supply 41 

63.  Appropriations  for  Industrial  Purposes 42 

CHAPTER  VI. 

WATERS   FOR   IRRIGATION   IN   ARID   COUNTRIES. 

71.  Irrigation  under  the  Common  Law 44 

72.  Local  Irrigation  Laws 45 


CONTENTS.  Xlll 

SECTION  FAGR 

73.  Irrigation  Rights  by  Prior  Appropriation 47 

74.  Prior  Appropriator  vs.  Riparian  (3 wners 49 

75.  Priority  in  Appropriation 50 

76.  Abandonment  of  Irrigation  Rights 60 

77.  Nature  of  Irrigation  Rights 62. 


CHAPTER  VII. 

DETENTION  OF  WATERS  OF  STREAMS.      MILLS  AND  MILL  RIGHTS. 

81.  The  Detention  and  Obstruction  of  Streams 66> 

82.  The  Use  Must  Be  Beneficial  and  Reasonable 66 

83.  Detention  of  Waters  by  Dams 67 

84.  Alternate  Obstruction  and  Release  of  Waters 68 

85.  Backing  Up  and  Overflow  of  Waters  Dammed 69 

86.  Injunction  to  Prevent  the  Detention  or  Obstruction  of  Waters 71 

87.  Liability  for  Defective  Construction  of  Dam  or  Barrier 71 

88.  Maintenance  and  Repair  of  Dam 72 

89.  Liability  for  Injuries  to  Dam 73 

90.  Injuries  Due  to  Floods  that  might  have  been  Expected,   foreseen,  and 

Guarded   Against 73 

CHAPTER  VIII. 

DIVERSION  AND  OBSTRUCTION  OF  WATERS.      STREAMS. 

101.  Diversion  of  Watercourses. . 74 

102.  The  Quantity  Must  Not  be  Materially  Diminished 74 

103.  Obstruction  of  Outlet  to  Pond 75 

104.  Diversion  Not  Excused  by  Fact  that  Sufficient  Water  Remains 75 

105.  Diversion  of  Stream  into  New  Channel 76 

106.  Excavating  and  Deepening  the  Channel  of  a  Stream 77 

107.  New  Channel  Fixed  by  Prescription 77 

108.  Riparian  Owners  whose  Rights  are  Not  Affected  Cannot  Complain 79 

109.  Mode  of  Diverting  Waters 79 

no.  Diversion  of  Waters  by  Percolation  or  Subterranean  Channels 79 

in.  Measure  of  Damages  for  Diversion  of  Waters 80 

112.  Obstruction  by  Bridges,  Culverts,  and  Embankments 81 

113.  Diversions  Made  to  Lessen  the  Cost  of  Structures 81 

114.  Structures  must  Provide  for  Ordinary  Floods  and  Freshets 82 

115.  What  was  an  Extraordinary  Flood  Is  a  Question  for  the  Jury 83 

116.  Liability  for  Obstruction  During  Erection  Authorized  by  Law 8} 

117.  Stream  Contracted  by  Structure  and  Consequent  Overflow 85 

118.  Injunction  to  Restrain  Obstruction  of  Stream,  Without  Proof  of  Damages  85 

119.  Structures  must  be  Kept  Free  of  Obstructions 86 

120.  Culverts  in  Railroad  Embankments 86 

121.  Openings  in  the  Clear  for  Navigation 87 

CHAPTER  IX. 

PROTECTION  OF  BANKS  AND  STRUCTURES  FROM  WATERS. 

131.  In  Protecting  Bank  or  Structures  Care  and  Skill  must  be  Exercised 90 

132.  Must  Exercise  Prudence.  Foresight,  and  Good  Judgment 90 

133.  Return  of  Stream  to  its  Old  Channel 91 

134.  Protection  ot  Land  from  Encroachment  of  Stream 92 

135.  Riparian  Owners  Have  Equal  Rierhts  to  Protect  their  Lands 93 

136.  Protection  Against  Overflow  in  Times  of  Flood 93 

137.  Deflection  of  Stream  Against  Lower  Riparian  Owner 94 

138.  Measure  of  Damages  for  Deflection  of  Waters 04 


XIV  CONTENTS. 

CHAPTER  X. 

SUPPLY  OF  WATER  AND   ICE.       WATER  COMPANIES  AND   WATER-WORKS. 

SECTION  PACB 

141.  Ownership  and  Control  by  Municipal  Corporations 96 

142.  Authority  Conferred  by  Certain  Statutory  Provisions 96 

143.  Powers  Conferred  by  the  Legislature  upon  Water  Companies 97 

144.  Negligent  Construction  of  Water-works 98 

145.  Negligence  in  Laying  and  Maintaining  Pipes,  etc 98 

146.  Private  Water   Companies 99 

147.  Exclusive  Franchises  to  Water  Companies 99 

148.  Quantity  and  Quality  of  Water-supply 100 

149.  Public  Character  of  Water  Companies 102 

150.  Rules  and  Regulations  of  Water  Company 103 

151.  Regulation  of  Rates  or  Rents  for  Water 103 

161.  Ice  and  the  Ice  Industry 1 14 

162.  Character  of  Property  in  Ice 105 

163.  Real  or  Personal  Property  in  Ice 105 

164.  Ice  Formed  on  Navigable  Streams 100 

165.  Ice  Formed  on  Lakes  and  Ponds 107 

166.  Ice  Formed  on  Artificial  Ponds 107 

167.  Owners  of  Water  and  Ice  are  the  Same 108 

168.  Travel  upon  Ice — Rights  of  Public 108 

169.  Measure  of  Damages  for  Taking  Ice 109 


CHAPTER  XL 

WATER.      RIGHTS  IN  REGARD  TO  SURFACE-WATERS. 

171.  Surface-waters  Defined HO 

172.  Surface-waters  Distinguished  from  Watercourses no 

1720.  Watercourse  Defined  and  Distinguished in 

173.  Overflow  of  Watercourses 114 

174.  Property  in  Surface-waters H5 

175.  Obstruction  and  Repulsion  of  Surface-waters 115 

176.  Different  Laws  in  Different  States 1 16 

177.  Improvements  on  Land  under  the  Common  and  Civil  Law  Rules 117 

178.  Drainage  of  Surface-waters 117 

179.  Drainage  of  Ponds,  Stagnant  Bodies,  etc 119 

180.  Water  from  Roofs 119 

181.  Eaves-troughs,  Gutters,  and  Conductors 120 

182.  Discharge  of  Roof-waters,  Snow,  and  Ice  into  Street 121 

183.  Easement  of  Eaves-drip 121 

184.  Drainage  of  Surface-waters  into  Watercourses 122 

185.  Prescriptive  Rights  to  Drainage  of  Surface-water 123 

186.  Control  and  Regulation  of  Surface-waters  by  Municipal  Corporations 124 

187.  Surface-water  Discharged  or  Detained  by  Grading  Streets 125 

188.  Liability  of  City  for  Defective  Plans  for  Drainage 125 

189.  Liability  for  Defective  Construction  or  Inferior  Materials 126 

190.  Accumulation  and  Discharge  of  Waters  upon  Private  Lands 127 

191.  Obstruction,  Diversion,  and  Repulsion  of  Surface-waters  by  Railroads 127 

192.  Liability  for  Negligent  Construction 129 

193.  Measure  of  Damages  Due  to  Surface-waters 129 

194.  Measure  of  Damage  from  Diversion  of  Surface-waters 130 

195.  What  Damages  may  be  Assessed 131 

CHAPTER  XII. 

FOULING  AND  POLLUTION  OF  SURFACE-WATERS  AND  STREAMS. 

201.  Pollution  of  Streams  and  Bodies  of  Water 132 

202.  What  Constitutes  a  Fouling  of  Waters 132 


CONTENTS.  XV 


203.  Sources   of   Pollution 133 

204.  Pollution  by  the  Discharge  of  Sewers 133 

205.  Natural  Streams  Must  Receive  Natural  Drainage 133 

206.  Degree  of  Pollution  that  will  be  Enjoined 134 

207.  Reasonable  Use  of  Waters  of  a  Stream 135 

208.  Instances  of  Reasonable  Use 136 

209.  An  Injunction  or  Damages  may  be  Had  for  Pollution 137 

210.  Purification  of  Sewage  Required 138 

211.  Rights  of  Riparian  Owners  cannot  be  Taken  Without  Compensation 138 

212.  Right  to  Discharge  Sewage  Acquired  by  Prescription 138 

213.  Parties  to  Suit  to  Prevent  Pollution 140 

214.  Pollution  of  Stream  by  Joint  Wrongdoers 141 

215.  Liability  for  Defective  Sewers 141 

216.  Pollution  of  Watercourses  by  Mills,  Factories,  and*  Works 142 

217.  Pollution  from  Mining  Operations - 143 

218.  Instances  in  Befouling  a  Stream 143 

219.  Injunction  Granted  when  No  Damages  are  Suffered 144 

220.  Person  Injured  Not  Required  to  Prevent  Pollution 144 

221.  Pollution  by  Refuse  from  Gas-works 145 

222.  Pollution  of  Streams  with  Refuse  from  Sawmills  and  Tanneries 145 

223.  Measure  of  Damages  for  Pollution  of  Waters 146 

CHAPTER  XIII. 

NAVIGABLE  WATERS.       PUBLIC  AND  PRIVATE  RIGHTS  IN  NAVIGABLE  WATERS. 

231.  -Navigable   Waters 147 

232.  Uses  of  Navigable  Streams 148 

233.  Navigability  does  Not  Depend  upon  Improvements 149 

234.  Rule  in  Several  States 149 

235.  Non-tidal    Rivers 150 

236.  Rights  of  Public  in  Navigable  Waters 151 

237.  As  Regards  Bathing 151 

238.  Navigable  Inland  Rivers  are  Usually  Public  Property 152 

239.  Waters  Between  States 153 

240.  Public  Easement  of  Passage  over  Streams  is  Paramount 153 

241.  Improvement  of  Navigation  Paramount  to  Individual  Rights 154 

242.  Obstruction  f of  Navigable  Waters 155 

243.  Streams  for  'Floating  Logs  and  Timber 157 

244.  B?nks  and  Shores  of  Navigable  Waters  and  their  Use 160 

245.  Rules  and  Restrictions  Governing  the  Use  of  Navigable  Waters 161 


CHAPTER  XIV. 

SUBTERRANEAN  OR  UNDERGROUND  WATERS. 

251.  Subterranean   Waters   Defined 162 

252.  Percolating  Waters 162 

253.  Percolating  Waters  Distinguished  from  Surface  Currents 163 

254.  Sapping  and  Diverting  Sources  of  Springs  and  Wells 165 

255.  Springs  and  Wells  Drained  by  Construction  of  Public  Works 166 

256.  Subsurface  Currents  Known  and  Defined 167 

257.  Presumption  that  Waters  are  Percolating 168 

258.  Appropriation  and  Use  of  Subterranean  Currents 168 

259.  Underground  Currents  Compared  with  Watercourses 169 

260.  Grants  of  a  Right  to  Underground  Waters 169 

261.  Rights  to  Waters  of  Springs  and  Wells  as  between  Grantor  and  Grantee. .  169 

262.  Prescriptive  Rights  in  Underground  Waters 171 

263.  Pollution  of  Underground  Waters 172 

264.  Pollution  by  Oil,  Tar,  etc.,  Soaking  into  Ground 172 

265.  Contamination  that  Amounts  to  a  Nuisance 173 


XVI  CONTENTS. 

SECTION  PAGE 

266.  Fouling  or  Contaminating  the  Land  of  Adjoining  Owners 173 

267.  Negligence  an  Element  in  Determining  Liability  for  Fouling  Subterranean 

Waters    174 

268.  If  Acts  Amount  to  Nuisance 175 

269.  Negligence  may  Fix  Liability 176 

270.  Injunction  will  Issue  to  Prevent  Fouling  of  Ground-waters 177 

271.  Motive  an  Element  in  the  Destruction  of  Underground  Waters 177 

272.  Percolations  which  are  Artificial  or  Enforced 178 

274.  Negligence  to  Accumulate  Waters  under  Pressure,  and  Permit  to  Escape.   180 

275.  Diversion  and  Obstruction  of  Underground  Currents 181 

CHAPTER  XV. 

OIL  AND  GAS.       OWNERSHIP  AND  APPROPRIATION  OF  OIL  AND  GAS. 

281.  Oil  and  Gas  Compared  to  Percolating  Water 182 

282.  Nature  and  Character  of  Natural  Gas 182 

283.  Gas  and  Oil  in  Grants  of  Mineral  Rights 183 

284.  Rights  Incident  to  the  Operation  of  Gas-  and  Oil-wells 184 

285.  Gas  Companies,  their  Incorporation,,  Organization,  and  Control 185 

286.  Ownership  of  Minerals  and  Metals  in  Land 185 

CHAPTER  XVI. 

• 

ELECTRICITY.      PROPERTY  RIGHTS  AFFECTED   BY  THE  USE  AND  DISCHARGE  OF 

ELECTRICITY. 

291.  Properties  and  Character  of  Electricity 187 

292.  Electricity  Compared  to  Heat,  Light,  Sound,  and  Other  Vibratory  Con- 

ditions     187 

293.  Injuries  Result  from  Escaping  or  Induced  Electric  Currents 189 

294.  Electrical  Litigation  is  Between  Owners  of  Franchises  and  Not  Landowners  191 

295.  Litigation  over  Electrical  Disturbances  between  Public  Corporations 192 

296.  Superior  Rights  in  Streets  Determined  by  Uses  Incident  to  Travel iyj 

CHAPTER  XVII. 

LIGHT  AND  AIR  INCIDENT  TO  LAND. 

301.  Free  and  Uninterrupted  Use  of  Light  and  Air  Incident  to  Land 195 

302.  Instances  of  Interference  with  Light  and  Air 196 

303.  Public  and  Private   Nuisances 197 

304.  Ordinances  to  Prevent  Smoke  Nuisance 198 

305.  Vapors  and  Odors  from  Gas-plant 199 

306.  Acts  that  Create  Nuisances 200 

307.  Easements  of  Light  and  Air 200 

308.  Interference    of   Air   and   Light   by    Boundary   Walls   and    Overhanging 

Structures   201 

CHAPTER  XVIII. 

PROPERTY  RIGHTS  DEFINED  BY   BOUNDARY   LINES.      LATERAL  SUPPORT. 

311.  Rights  of  Adjoining  or  Contiguous  Owners 203 

312.  Trees  and  Shrubs  on  Boundary  Line — Line-trees 203 

313.  Ownership  of  Trees  Growing  Near  Boundary-line 204 

314.  Liability  for  Destruction  of  Line-trees 205 

315.  Property  in  Overhanging  Fruit  of  Trees 206 

316.  Lopping  or  Cutting  Overhanging  Branches 206 


CONTENTS.  XVli 


317.  Actions  for  Injuries  from  Overhanging  Trees 207 

318.  Trees  that  Overhang  a  Public  Way 208 

319.  Trees  Growing  in  Public  Ways . 208 

320.  Measure  of  Damages  for  Destruction  of  Trees. 209 

321.  Rights  of  Landowner  to  Lateral  Support  for  his  Land  by  the  Land  of  his 

Neighbor 210 

322.  Landowner  may  Make  Improvements — Owner  must  Give  Notice 210 

323.  Landowner  is  Entitled  to  Support  of  Land  Alone 211 

324.  Statutory  Laws  in  Large  Cities '212 

325.  Easement  of  Extra  Support — How  Acquired 214 

326.  Easement  to  Extra  Support  Acquired  by  Prescription 215 

327.  In  Making  Improvements  on  One's  Land  the  Owner  must  Exercise  Care.  21  - 

328.  Notice  to  Neighbor  of  Excavation  should  be  Given.  . .  . 218 

329.  Remedy  for  Injury  to  Support 218 

330.  Measure  of  Damages  for  Loss  of  Support 219 

331.  What  Care  and  Diligence  must  be  Exercised 220 

332.  Liability  for  Failure  to  Exercise  Care 221 

333.  Precautions  to  be  Taken  to  Prevent  Injury 221 

334.  Right  of  Support  for  Surface  of  Ground 222 

335.  Lateral  Support  of  a  Structure 225 

336.  Encroachments  or  Projections  upon  Adjoining  Land 225 

337.  What  Constitutes  a  Party-wall • 227 

338.  Property  in  Party-walls 227 

339.  Destruction  or  Demolition  of  Party- walls 228 

340.  Right  to  Build  Party-wall  Higher 228 

341.  Erection  of  Wall  or  Fence  to  Obstruct  Light  and  View 229 

342.  Openings  in  a  Party-wall 230 

343.  Agreement  of  Adjoining  Owner  to  Pay  his  Share  of  Cost  of  Party-wall. . .  230 

CHAPTER  XIX. 

INTERFERENCE  OR   INVASION   OF  PROPERTY   RIGHTS   BY    SURVEYORS. 

351.  Trespass  232 

352.  Engineers  and  Surveyors  as  Trespassers 233 

353.  Trespass  Committed  by  Surveyor  or  Engineer  when  a  Public  Officer 235 

354.  Trespass  by  Government  Surveyors 237 

355.  Surveyor's  Interference  with  Travel  on  Highways 239 


PART    III. 

DETERMINATION    OF    THE    BOUNDARIES    OF    LAND.       SURVEYS 

AND    SURVEYING. 


CHAPTER  XX. 

BOUNDARIES  IN   GENERAL.      HOW  DESCRIBED,   ESTABLISHED,   AND   MAINTAINED. 

361.  Relation  of  Law  and  Surveying 241 

362.  Boundaries  Described  in  Deed  of  Conveyance 241 

363.  Phraseology  of  a  Description  is  Important 242 

364.  Boundaries  Defined. 242 

365.  Government  Boundaries 243 

366.  Boundaries  Defined  by  Monuments 243 

367.  Boundaries — How    Established 243 

368.  Boundaries  Established  by  Law 244 

369.  Boundaries  Described  by  Natural  Objects 245 

370.  Boundaries  Described  by  Artificial  Monuments 245 


XV111  CONTENTS. 

i 

CHAPTER  XXI. 

BOUNDARIES  ON  WATERS.       SHIFTING  CHARACTER.       ACCRETION,  EROSION,  RELICTION, 

AND   RECLAMATION. 

SECTION  PAGB 

371.  Boundaries  Described  by  Natural  Bodies  of  Waters 247 

372.  Boundaries  Denned  by  the  Sea  are  Not  Fixed  and  Permanent 247 

373.  Beaches,  Shores,  and  Banks  as  Boundaries 248 

374.  The  High-  and  Low-water  Mark 248 

375.  Property  in  Beaches,  Shores,  and  Banks 250 

376.  Beaches  and  Shores  Described  as  Boundaries 251 

377.  Streams  and  Rivers  as  Boundaries.     Effects  of  Erosion  and  Accretion...  252 

378.  Accretions  go  to  Riparian  Owners 254 

379.  Accretions  to  Public  Streets  and  Ways 256 

380.  Ownership  of  Land  Re-formed  upon  a  Site  Washed  Away 257 

381.  Accretions  to  Lands  upon  Lakes,  Ponds,  and  Harbors 258 

382.  What  may  be  Done  to  Prevent  Encroachments  or  to  Promote  Accretions.  260 

383.  Determination  of  Boundaries  of  Land  Acquired  by  Accretion  or  Reliction  261 

387.  Connection  of  Monuments  with  Inaccessible  and  Imaginary  Bounds 266 

388.  Subdivision  of  Lowlands   Reclaimed 267 

389.  Submerged  Lands  the  Subject  of  Sale,  Patent,  and  Lease 268 

390.  Effect  of  Sudden  Changes  on  Boundaries 268 


CHAPTER  XXII. 

BOUNDARIES   ON  WATERS.       LAND   BOUNDED   BY,   ALONG,   UPON,    OR   ON  A   STREAM   OR 
THE  BED,   BANK,   BEACH,   OR  SHORE. 

401.  Monuments  Described  as  on  the  Bank  or  Shore — Intention  Expressed...  271 

402.  Practical,  Common-sense  Rule  Applied 272 

403.  Water  Regarded  as  an  Element  and  a  Natural  Appurtenant  to  Land 272 

404.  Effect  of  Field  Operations  on  Descriptions  of  Boundaries 273 

405.  Construction  of  Deed  is  Largely  a  Question  of  Intention 274 

406.  Land  Bounded  At,  On,  Along,  By,  or  With  a  Stream  or  Body  of  Water. .  274 

407.  To  the  Bank  or  Shore,  thence  up  the  Stream 276 

408.  Expressions  that  do  Not  Carry  Boundary  to  Water's  Edge 279 

409.  Middle  Line  of  Streams  the  Boundary 280 

410.  Meander-lines  do  Not  Always  Determine  the  Boundaries 281 

411.  Should  Area  Given  Include  Bank  and  Bed  of  Stream? 283 

412.  The  Question  of  Boundaries  is  Determined  by  the  Laws  of  the  State 284 

413.  Law  of  Boundaries  Affected  by  Early  Settlements 284 

414.  Boundaries  on  Navigable  Waters 286 


CHAPTER  XXIII. 

BOUNDARIES  ON  LAKES  AND  PONDS. 

421.  Boundaries  on  Natural  Lakes  and  Ponds 288 

422.  Boundaries  on  Artificial  Lakes  and  Ponds 292 

423.  Shore,  Beach,  Bank,  or  Water's  Edge  of  Lakes  and  Ponds 293 

424.  Receding  of  Waters  of  Lakes  and  Ponds 294 

CHAPTER  XXIV. 

BOUNDARIES   OF   ISLANDS. 

431.  Ownership   of  Islands 297 

432.  Boundaries  of  Islands 301 


CONTENTS.  XIX 

CHAPTER  XXV. 

BOUNDARIES  ON   STREETS  AND   ROADS. 

SECTION  PAGE 

441.  Property  in  Streets  and  Ways 302 

442.  Rights  of  Abutting  Owners  to  the  Soil  of  Streets 303 

443.  Ownership  of  Whole  Width  of  Street 3<H 

444.  Rights  of  Abutting  Owners  in  Other  Ways  than  Streets 304 

445.  Boundary  Affected  by  Changes  in  Street  or  Way 3°5 

446.  Presumption  of  Law  that  Abutting  Owners  Hold  Title  to  Street 306 

447.  Boundary  "On,"  "By,"  "Along,"  "Upon"  a  Public  Way 308 

448.  Middle  Line  of  Street  the  Boundary 309 

449.  Rule  is  Well  Established  in  Some  States  that  Center  Line  of  Street  is 

Boundary    309 

450.  The  Intention  of  the  Parties  must  Prevail 31 1 

451.  Intention  Expressed  by  Different  Phrases  and  Clauses — Side  or  Line  of 

Street    3H 

452.  Intersection  of  Streets  or  Roads 312 

453.  Boundaries  on  Private  or  Unaccepted  Streets 3*3 

454.  Boundaries  on  Ways  when  Land  is  Described  by  Reference  to  a  Plat 313 

455.  Reservation  of  Narrow  Strip  of  Land  as  Boundary  of  a  Village 314 

456.  Reverting  of  Abandoned  Streets  to  Abutting  Owners 314 

CHAPTER  XXVI. 

BOUNDARIES    DETERMINED    BY   ARBITRATION. 

461.  Arbitration  a  Popular  Means  of  Settling  Boundary  Disputes 316 

462.  Submission  of  Disputes  in  Regard  to  Real  Estate 316 

463.  Effect  of  a  Submission  to  Arbitration 317 

464.  Determination  by  Arbitrators  is  Final 317 

465.  What   Constitutes   a   Submission 318 

466.  Arbitrators  Should  be  Named ^ 318 

467.  Award  is  Irrevocable  and  Binding 7 319 

468.  Before  Award  is  Made,  Submission  to  Arbitration  may  be  Revoked 320- 

469.  Award  of  Arbitrators  Held  Not  to  Affect  the  Title  to  Land 320 

470.  Disputes  Should  be  Submitted  to  Arbitration 321 

471.  Submission — Its    Form   and   Contents 321 

472.  Powers  of  Arbitrator  are  Sometimes  Restricted 321 

473.  Mistakes  of  Surveyor  as  an  Arbitrator 322- 

474.  Arbitrator  must  Not  Exceed  his  Powers 323 

475.  Submission  to  Several  Arbitrators 323, 

476.  Arbitrators  may  Not  Delegate  their  Duties  and  Powers 323. 

477.  Ministerial  Duties  of  Arbitrators  may  be  Delegated 324. 

478.  Powers  of  Surveyors  as  Arbitrators  to  Summon  Witnesses  and  Conduct 

Investigation    325. 

479.  Arbitrators  must  Receive  Evidence 325 

480.  Surveyors  as  Arbitrators  must  Act  Together 326 

481.  Notice  to  Parties  of  Hearing 326 

482.  Compensation  of  Surveyors  as  Arbitrators 326 

483.  Surveyor's  Powers  are  at  an  End  when  Award  is  Made 327 

484.  Form  of  Award 327 

485.  The  Award  must  be  Certain  and  Definite 327 

486.  The  Award  must  be  Possible 328 

CHAPTER  XXVII. 

BOUNDARIES    ESTABLISHED    BY   AGREEMENT   OR  ACQUIESCENCE. 

491.  Settlement  of  Controversies  is  Encouraged  by  the  Courts 329 

492.  Determination  of  Boundaries  by  Mutual   Consent 329 

493.  Boundaries  Designated  by  Grantor  at  Time  of  Transfer 330 


XX  CONTENTS. 


494.  Surveyors  may   Not  Change   Boundaries  that   Parties  have  Themselves 

Fixed    331 

495.  The  Agreement  and  Acquiescence  does  Not  Effect  a  Conveyance 332 

496.  Parol  Agreements  to  Settle  Disputed  Boundaries 333 

49,, .  Proof  01  Agreement  and  Acquiescence 333 

498.  Agreements  in  Regard  to  Boundaries  Not  in  Dispute 334 

499.  Parties  and  Grantees  may  be  Bound  by  Agreements 334 

500.  Acquiescence  and  Occupation  Required  for  What  Period 336 

501.  Length  of  Time  Required  to  Occupy  and  Acquiesce 336 

502.  Period  of  Occupation  and  Acquiescence  Dependent  on   Express  Agree- 

ment   338 

503.  Occupation  by  License  is  Not  Acquiescence  or  Proof  of  Agreement 340 

504.  Acquiescence  under  a  Mistake 340 

CHAPTER  XXVIII. 

ADVERSE  POSSESSION.      TITLE  AND  BOUNDARIES  TO  LAND  AFFECTED  BY  IT. 

511.  Land  Acquired  and  Boundaries  Determined  by  Adverse  Possession 342 

512.  Surveyor  should  Take  Cognizance  of  his  Client's  Rights 342 

513.  Brief  History  of  Rights  by  Adverse  Possession 343 

514.  Possession  as  Evidence  of  Title 343 

515.  Essential  Elements  of  Adverse  Possession  to  Give  Title 344 

516.  Possession  must  be  Adverse  and  Hostile 344 

517.  Adverse  and  Hostile  Character  of  Possession  a  Question  of  Intention....  347 

518.  Possession  Held  under  a  Mistake  may  be  Adverse  and  Hostile — Color  of 

Title 349 

519.  Possession  by  Agreement  and  Acquiescence  is  Adverse 35° 

520.  The   Possession  must  be  Actual 35° 

521.  What  Constitutes  Adverse  Use 351 

522.  Land  should  be  Inclosed 354 

523.  Payment  of  Taxes 355 

524.  Adverse  Possession  under  Color  of  Title 355 

525.  Adverse  Possession  must  be  Open,  Visible,  and  Notorious 356 

526.  What  is  Color  of  Title 356 

527.  Adverse  Possession  of  Mines 35° 

528.  Owner  must  have  had  Notice  of  Adverse  Possession 359 

529.  The  Possession  must  be  Continuous  and  not  Interrupted 360 

530.  What  is  an  Abandonment  or  Interruption : 361 

531.  Exclusive  Possession  and  Interruption  Determined  by  Location  and  Char- 

acter of  Land 3^3 

532.  Interference  or  Overlapping  of  Title 363 

533.  Color  of  Title  and  Good  F?  i'th 364 

534.  There  can  be  No  Adverse  Possession  against  the  Public  nor  the  Repre- 

sentative  Government 365 

535.  Adverse  Possession  of  Railroad  Right  of  Way 367 

536.  Adverse  Possession  by  Railroad  Companies 367 

CHAPTER  XXIX. 

CONSTRUCTION,  INTERPRETATION,  AND  APPLICATION  OF  DESCRIPTIONS. 

541.  Descriptions  in  Deeds  and  Conveyances 369 

542.  Parol  Proof  of  Deeds  and  Descriptions 369 

543.  Sufficiency  ^  of   Description 371 

544.  A  Description  is  Sufficient  if  the  Land  can  be  Located 372 

545.  Conflicting  Parts  of  Description  will  be  Reconciled  if  Possible 372 

546.  Insufficient,  Imperfect,  and  Ambiguous  Descriptions 373 

547.  Surplusage  in  a  Description  will  be  Rejected 375 

548.  A  Particular  Description  will  Control  a  General  Reference  or  General  De- 

scription      375 


CONTENTS.  XXI 

SECTION  PAGE 

549.  A  General  Description  will  Answer  if  the  Particular  Description  Fail 376 

550.  Effect  of  Omissions  in  a  Description 377 

551.  Certain  Parts  of  Description  Omitted  may  be  Supplied 379 

552.  Land  Described  may  be  Shown  to  have  Belonged  to  Grantor 380 

553-  When  Description  Applies  to  Two  Estates.  . . . . . 381 

554.  Land  Described  by  Familiar  Name  in  Community 382 

5540.  Land  Described  as  a  Part  of  a  Whole 383 

555.  Insufficient  Description  Cured  by  Reference  to  a  Map  or  Deed 384 

556.  Grantee  or  Devisee  Uncertain 386 

557.  Intention  of  Parties  will  Prevail  if  it  can  be  Ascertained  from  Deed 387 

558.  When  Evidence  of  Intention  of  Parties  is  Admissible 387 

559.  Conveyance  Not  Located  Give  Undivided  Interest 388 

560.  Signs,  Symbols,  and  Abbreviations  in  Descriptions '. 3»9 

561.  Judicial  Notice  of  Meaning  of  Abbreviations,  etc. .  . . , 389 

562.  Poor  Spelling  and  Grammatical  Errors  in  Description 390 

CHAPTER  XXX. 

DESCRIPTION.      CONFLICT  OF  CALLS. 

571.  Governing  Factors  in  Description— That  which  is  Most  Certain  will  Con- 

trol    391 

572.  The  Intention  of  Parties  will  Prevail 392 

573.  Controlling  Factors  when  Intention  is  Not  Clear — Monuments  Control...  393 

574.  It  is  the  Policy  of  the  Law  to  Maintain  Existing  Boundaries 394 

575.  Relative  Importance  of  Different  Calls  in  a  Description 395 

576.  Monuments,  if  Identified,  Control  all  Other  Calls ' 395 

577.  Monuments  Control  in  Government  Surveys 396 

578.  When  Monuments  are  Lost  or  Destroyed 397 

570.  In  Government  Surveys  it  is  the  Original  Monuments  that  Control 398 

580.  Identification   of  Monuments — Evidence  Admissible 399 

581.  Fences  as  Monuments 400 

582.  Natural  Monuments,  as  Roads,  Streams,  and  Ways 400 

583.  Calls  for  Adjoiners  against  Courses  and  Distances 401 

584.  Calls  for  Adjoiners  against  Points  of  Compass 402 

585.  Adjoining  and  Cornering  Estates 403 

586.  Calls  for  Courses  against  Distances 403 

587.  Courses  Held  to  Govern  Distances 404 

588.  Calls  for  Courses  and  Distances  against  Area  or  Acreage 406 

589.  Quantitv  of  Land  a  Factor  in  a  Description 406 

500.  Effect  of  Representations  as  to  Quantity 407 

591.  '  More  or  Less  "'—Meaning  of  Words  when  Quantity  is  Stated 410 

592.  '  More  or  Less  '  —Variation  in  Quantity  Stated  Permissible 410 

593.  I  More  or  Less  '    when  Land  is  Described  by  Metes  and  Bounds 411 

595.  "  More  or  Less  '    Applied  to  Linear  Distances 412 

596.  "  More  or  Less  '    in  Trade  or  Commerce 412 

507.  Excess  or  Deficiency — How  Distributed 412 

508.  Description  by  Lot  Number  of  Map  or  Plan  Referred  to 413 

5^0.  Moii«tin»*ita  Designated  on  Man  against  Monuments  on  Land 414 

600.  Conflict  Between  Plat  and  Field-notes  of  Public  Land 416 

601.  OMer  and  Later  Surveys  and  Grants— Their  Relative  Value 417 

<~7.  A^irnnths.  Bearings,  and  Points  of  Compass— Meaning  of  Words 417 

601.  Meridians,  True  or  Magnetic 4iS 

605.  Measurements  to  and  from  Objects  Described  as  Monuments 419 

606.  Measurements  "  to  or  along  "  a  Road 420 

607.  Measurements  to  Adjoining  Tracts  or  Structures 421 

CHAPTER  XXXI. 

DETERMINATION  AND   PROOF   OF  BOUNDARIES. 

6n.  Determination  of  Boundaries  is  Usuallv  for  Jury .-. . .  422 

612.  Court  should  Leave  Jury  Unbiased  to  Determine  Boundary 423 


XX11  CONTENTS. 


613.  Maps  and  Plans  Referred  to  in  a  Deed  Become  a  Part  Thereof 425 

614.  Description  Complete,  and  General  Reference  to  Maps  and  Deeds 425 

615.  Maps  and  Plans  Referred  to  are  Evidence  of  Boundaries 426 

616.  Copies  of  Maps  and  Records  as  Evidence 426 

617.  Admission  ot  Field-notes' ^as  Evidence 427 

618.  Government  Maps  as  Evidence 427 

619.  Testimony  of  Old  Inhabitants  as  to  Location  of  Boundary  Lines 427 

620.  Traditional  Proof  of  Boundaries 428 

621.  Testimony  of  Old  Inhabitants  against  Paper  Title 430 

622.  Ancient  Maps  and  Documents 430 

623.  Computing  the  Age  of  a  Document 431 

624.  Maps  and  Documents  Not  Received  as  Evidence 433 

625.  Evidence  of  Declarations  by  Deceased  Persons 433 

'626.  Person  Making  Declarations  must  have  had  Peculiar  Means  of  Knowing 

Boundaries    435 

627.  Opinions  of  Witnesses  Not  Admissible 435 

628.  Surveyor's  Opinion  as  Evidence  when  Based  upon  Knowledge  of  Facts.  ..  436 

629.  Person  must  Not  have  had  an  Interest  in  Making  such  Declarations 437 

630.  Starting-point  in  Making  a  Survey 437 

631.  Evidence  to  Establish  Starting-point  of  Survey 438 

632.  Survey  made  by  Direct  or  Reverse  Calls 439 

633.  Methods  of  Closing  a  Survey  in  Certain  Cases  of  Error 440 


PART    IV. 

EASEMENTS.      INCORPOREAL   RIGHTS. 
CHAPTER  XXXII. 

EASEMENTS  IN   GENERAL. 

641.  Easement  Defined 443 

642.  How  Easements  are  Acquired  or  Created. 444 

643.  How  an  Easement  may  be  Lost  or  Extinguished 445 

644.  Character  of  Easement  Not  an  Interest  in  the  Fee 445 

645.  Easements  Extinguished  bv  Merger  of  Estates 445 

646.  Parties  Entitled  to  Enjoy  Easement 446 

647.  Rights  and  Liabilities  of  the  Parties  to  the  Easement — Maintenance   of 

Easement  44& 

648.  Destruction  and  Restoration  of  Easement 447 

649.  Abandonment  of  Easements 44§ 

650.  Easements  Lost  by  Non-user 449 

651.  Extent  and  Mode  of  Use  of  an  Easement 45O 

CHAPTER  XXXIII. 

LICENSE,   REVOCABLE  AND  IRREVOCABLE. 

661.  License  Distinguished  from  Easement 452 

662.  License  to  Divert  Waters  by  Dams 453 

66-*.  Licenses  held  Not  Revocable  on  Ground  of  Contract  and  Estoppel 454 

664.  License  to  Build  Water-works  and  Sewers 455 

665.  License  to  Build  and  Operate  Railroad 456 

666.  Party-walls,  Stairways,  and  Passageways,  etc 457 

66*7.  License  of  Purchaser  to  Enter  and  Take 457 

668.  License  the  Subject  of  Transfer. 458 

66p,  Revocation  of  License 458 


CONTENTS.  XX111 

CHAPTER    XXXIV. 

PRESCRIPTION  AND  PRESCRIPTIVE  RIGHTS. 
SECTION  PACK 

671.  Importance  of  Easements  in  Engineering  and  Architectural  Operations..  460 

672.  Easements  Acquired  by  Prescription 461 

673.  Differences  between  Prescription  and  Limitations 461 

674.  Presumption  after  Use  for  Statutory  Period  Not  Easily  Rebutted 462 

675.  The  Use  should  be  by  Acquiescence  and  Not  by  Force 462 

676.  The  Prescriptive  Use  must  be  Open  and  Adverse  and  Not  Interrupted.  . . .  463, 

677.  The  Use  Must  Not  be  Interrupted 464 

678.  What  will  Amount  to  an  Interruption 464 

679.  Instances  of  Interruption 465 

680.  Method  or  Means  of  Interruption 465 

681.  Prescriptive  Rights  Limited  to  the  Prescriptive  Use '. 466 

682.  Prescriptive  Rights  against  the  State  or  the  Public 468 

683.  Prescriptive  Rights  Acquired  by  the  Public  in  Ways 469. 

684.  Encroachments  upon  Public  Ways 471 

685.  Prescriptive  Rights  Acquired  over  Railways 471 

686.  Tacking  the  Use  of  Successive  Holders 473 

687.  What  is  Privity  of  Estates 474. 

688.  Disabilities  to  which  Owner  of  Servient  Estate  is  Subject 475 

689.  Prescriptive  Rights  in  General 479, 

CHAPTER  XXXV. 

DEDICATION  OF  RIGHTS  IN  LAND  TO  PUBLIC. 

701.  Origin  and  Character  of  Dedication 480 

702.  Purposes  of  Dedication 481 

703.  What  Constitutes  Dedication 482 

704.  Who  may  Dedicate 484 

705.  Effect  of  Dedication 485 

706.  Acceptance  of  Easement  Dedicated. ]  ] 486 

707.  Non-user  of  Right  Dedicated '  \  487 

708.  Limits  and  Qualifications '  488 

709.  Instances  of  Dedication 489 

CHAPTER   XXXVI. 

EASEMENTS.      RIGHTS   OF  WAY   IN    GENERAL. 

711.  Rights  of  Way— How  Created 4QI 

712.  Rights  of  Way  the  Subject  of  a  Grant '  402 

713-  Maintenance  of  Right  of  Way  over  Another's  Land...!  4<r? 

714.  Rights  of  Way  Appurtenant  to  Land 'Tun 

715.  Implied  Rights  of  Way  by  Necessity 

716.  Change  of  Location  of  Right  of  Way.  .  4oe 

717-  Obstructing  a  Right  of  Way '.',  <£ 

718.  Erection  of  Awnings,  etc.,  in  a  Street log 

719-  Easement  of  Drain  over  or  through  Land.  . 

720.  Bridges  a  Part  of  Highway 

721.  When  Occupation  of  Public  Ways  may  be  Authorized.' ..'.'.'.'.'.'.'.'.'.'.  \ '.  \ '.  \  \  [  499 

CHAPTER   XXXVII. 

RIGHT  OF  WAY  OF  RAILROAD. 

731.  Character  of  Railroad  Right  of  Way 

732.  Right  of  Way— How  Acquired. . . . 

733-  Right  of  Way  Secured  by  Purchase.  ...    4 


XXIV  CONTENTS. 

SECTION  PAGE 

734.  Grantor  of  Right  of  Way 506 

735.  Right  of  Way  on  Condition 506 

736.  Restrictions  on  Use  of  Right  of  Way 508 

737.  Rights  of  Way  by  Condemnation 509 

738.  Railroad  Right  of  Way  Acquired  by  Dedication  and  Prescription 509 

739.  Widths  of  the  Right  of  Way 509 

740.  Rights  of  Way  by  License — Implied  Grants 510 

741.  Revocable  Character  of  License 510 

742.  Obstructions  to  the  Right  of  Way 512 

743.  Location  of  Railroad 512 

744.  Elements  to  Determine  the  Location  of  a  Railroad 512 

745.  Discretion  in  Selecting  a  Route  Not  Definitely  Fixed  by  Charter 513 

746.  Discretion  must  be  Honestly  Exercised  in  Locating  Road 514 

747.  Charter  Authorizes  but  One  Location  of  the  Road 514 

748.  Effect  of  Change  in  Location  on  Subscriptions  Paid  or  Pledged 515 

749.  Exercise  of  Authority  to  Change  Route  of  Road 515 

750.  Power  to  Change  Location  Limited  to  Necessities  of  Case 515 

751.  Prior  Location  and  Occupation  of  Right  of  Way 516 

752.  Maps,  Plans,  etc.,  Describing  the  Location 517 

753.  Terminals  of  a  Railroad 518 

754.  Property  in  Location 518 

755.  Abandonment  of  Location  or  Right  of  Way 519 

756.  Steam  Railroads  in  Streets  and  Highways 520 

757.  Liability  of  Municipality  for  Wrongful  Acts  of  Railroad  Company 521 

758.  Railroad  Company's  Liability 522 

759.  Abutting  Owners  have  Right  to  Unobstructed  Street 522 

760.  Statutes  in  Regard  to  Steam  Railroads  on  Streets 524 

761.  Liability  for  Injury  to  Abutting  Estates 525 

762.  Measure  of  Damages  to  Abutting  Property 525 

763.  Benefits  to  Property  from  Railroads 526 

764.  Injuries  to  Abutting  Owners  from  Elevated  Railways  in  Streets 527 

765.  Property  Rights  may  Not  be  Destroyed  or  Impaired  by  Legislative  Action  527 

CHAPTER   XXXVIII. 

RIGHTS  OF  WAY  OF  STREET  RAILWAY. 

781.  Street  Railway  Not  an  Additional  Burden  upon  Streets 528 

782.  The  Right  to  Use  Streets  for  Rights  of  Way 529 

783.  Obligation  to  Keep  Street  Unobstructed 5^9 

784.  Priority  in   Occupying  Streets 53° 

785.  Rights  of  Street  Railway  in  Street  to  the  Exclusion  of  Others 530 

786.  Power  of  Municipal  Corporations  to  Grant  a  Right  of  Way 531 

787.  Consent  of  Municipal  Authorities  to  Occupy  Streets. . 532 

788.  Obligations  and  Conditions  Imposed  upon  Street-railway  Company 534 

789.  Consent  Implied,  Revoked,  or  Modified 534 

790.  Consent  of  Abutting  Owners  or  of  City 535 

791.  Time  Limit  for  Completion  of  Road 536 

792.  Exclusive  Privileges  Not  in  Favor 536 

793.  Construction  of  Street  Railways 536 

794.  Liability  for  Defective  Track  and  Structures 537 

795.  Construction  of  Street-railway  Franchises 538 

796.  Forfeiture  of  Street-railway  Franchise 539 

797.  Unauthorized  Use  of  Streets  and  Ways 539 

798.  Electric  Trolley  Lines  upon  Streets  and  Ways 540 

799.  Change  of  Motive  Power  on  Street  Railway 541 

CHAPTER   XXXIX. 

RIGHT  OF  WAY  FOR  TELEGRAPH  AND  TELEPHONE  LINES. 

811.  Telegraph  and  Telephone  Lines  in  Public  Ways 542 

812.  Authority  to  Occupy  Streets  must  Come  from  Legislature 542 


CONTENTS.  XXV 


813.  Restrictions  Imposed  by  Legislature , 543 

814.  Telegraph  Lines  a  Burden  upon  Streets 543 

815.  Owner  of  Street  Entitled  to  Compensation  for  Additional  Burden 544 

816.  Measure  of  Damages  for  Use  of  Street  for  Telegraph  Lines 545 

817.  Telegraph  Company's  Liability  for  Injuries  by  Lines  and  Poles 546 

818.  Telegraph  and  Telephone  Line  on  Railroad  Right  of  Way 547 

819.  No  Exclusive  Rights  for  Telegraph  Lines  on  Railroads 548 

820.  Government  Grants  of  Rights  of  Way 548 

821.  Ways  that  are  Post-roads 549 

822.  State  Statutes  Superseded  by  United  States  Laws 550 

823.  Restrictions  and  Conditions  Imposed  by  Laws  and  Ordinances 550 

824  .Telegraph  Lines  across  Navigable  Waters 551 

825.  Proceedings  to  Condemn  a  Right  of  Way .' 551 

826.  Liability  for  Negligence  in  Erecting  and  Maintaining  Telegraph  Lines...  551 

827.  Rights  Attending  a  Prior  Occupation  of  Right  of  Way 552 

828.  Interference  with  Telephone  Lines  by  Induction 553 

829.  Protection  of  Wires  from  Contact  with  Other  Wires 554 

830.  Disturbance  and  Damage  from  Conduction 554 

831.  Electric-railway  Lines  and  Telegraph  and  Telephone  Circuits 555 

832.  Complainant  must  have  Exercised  Care 557 

833.  Telegraph  Lines  are  Avenues  of  Interstate  Commerce 55 

834.  Telegraph  and  ie^pauae  ^^...^....        *    .. 

CHAPTER    XL. 

RIGHTS    OF    WAY    IN    CONDUITS,    PIPE-LINES,    ETC.,    FOR    WATER,    OIL,    AIR,    GAS,    AND 

ELECTRICITY. 

841.  Rights  of  Way  for  Subways  and  Underground  Conduits 559 

842.  Pipe-lines    560 

843.  Pipe-lines  in  Public  Ways — How  Authorized 560 

844.  Subways  Constructed  under  License 561 

845.  Right  to  Enter  and  Open  and  Occupy  Streets 562 

840.  The  Act  of  Granting  the  Consent  is  Discretionary. 562 

847.  Property  in  Pipe-lines 563 

848.  Grants  of  Exclusive  Use  of  Streets  for  Subways 564 

849.  Care   of  Subways — Negligence 565 

850.  Measure  of  Damages 566 

851.  Other  Rights  of  Way 566 


PART   V. 

FRANCHISES. 


CHAPTER   XLI. 

CHARACTER  AND  KINDS  OF  FRANCHISES. 

861.  Character  of  a  Franchise 567 

862.  Public  Character  of  Corporations 567 

863.  Franchise  of  a  Corporation 569 

864.  Power  of  Eminent  Domain 570 

865.  Right  of  Exemption  from  Taxation 570 

866.  Right  to  Municipal  Aid 571 

867.  Right  to  a  Monopoly 571 

868.  Contract  Obligations  of  a  Franchise 571 


XXVI  CONTENTS. 


869.  Franchises  are  Granted  Subject  to  Police  Power 572- 

870.  Franchises  which  are  Subject  to  Legislation  Affecting  Remedies 573 

871.  The  Right  to  Amend  or  Repeal  Charters  Reserved 574 

872.  Power  to  Amend  and  Repeal  Limited 577 

873.  Limitation  as  to  Property  and  Contracts 577 

874.  Mortgage  Sale  and  Transfer  of  Franchises 578 

875.  Transfer  of  Franchise  of  Eminent  Domain 580 

876.  Transfer  of  Franchises  of  Exemption  from  Taxation 581 

877.  Sale  of  Franchises  on  Execution 582 

878.  Remedies  against  Corporations  for  the  Enforcement  of  Public  Duties 582 

879.  Extinguishment  of  Corporate  Franchises 583 

880.  Extinguishment  of  Franchise  on  Contingency 583 

881.  Extinguishment  by  Surrender 583 

882.  Extinguishment  by  Act  of  Legislature 584 

883.  Extinguishment  by  Failure  of  an  Integral  Part 584 

884.  Extinguishment  by  Forfeiture 585 

885.  Effect  of  Extinguishment 585 

886.  Taxation  of  Franchises 585 

887.  Corporate  Charters  and  Franchises 586 


TABLE  OF  CASES. 


References  are  to  sections. 


Abbey  v.  McPherson  (Kan.  App.)  (41  Pac. 

Rep.  978) v 584,  603 

Abbott  v.  Abbott  (51  Me.  575)...............  518 

v.    Kansas   City,   etc.,    R.    Co.    (83   Mo. 


271). 


Manhattan    R.    Co.    (122    N. 


136 


Abendroth    ~.    —     -    -     , 

Y    i) 817 

Abilene,   City  of,  v.   Wright   (46  Pac.   Rep. 

7ic)    706 

Acton  v.  Blundell  (12  M.  &  W.  327), 

253,  254,  269,  275 

Adams  v.  Besse  (2  Conn.  481)... ............  431 

v.   Durham   &   N.    R.   Co.    (N.    C.)    (14 

S.  E.  Rep.  857) • "4 

v.  Half  (Tex.)  (24  S.  W.  Rep.  334) 612 

v.    Harrington    (Ind.)    (14   N.    E.    Rep. 

603  [1888]) 549,  56o 

v.  Haskell  (16  Wend.  285) 501 

v.  Marshall  (138  Mass.  338  [1885]) 335 

v.  Moll  (6  Pa.  Super.  Ct.  380  [1898])...  107 

v.   Rockwell  (16  Wend.  285) 502 


285) 
.   Y.) 


705 

— —~v.  Ulmer  (Me.)  (39  Atl.  Rep.  347  [1897])  242 

Adrian  W.  W.  v.  Adrian  (64  Mich.  584) 147 

JEtna.  Mills  v.  Brookline  .(127  Mass  69)..  143,  272 

v.  Waltham  (126  Mass.  422) 62,272 

Agawam  Canal  Co.  v.  Edwards  (36  Conn. 

476)  406 

Aiken  v.  Ketchum  (39  Barb.  400) 316 

Airey  v.  Kimble  (42  Atl.  Rep.  533) 587 

• v.  Kunkle  (C.  P.)  (6  Pa.  Dist.  Rep.  i, 

18  Va.  Co.  Ct.  620) 587 

Akron  W.  Co.  v.  Brownless  (10  Ohio  Cir. 

Ct.  Rep.  620) 148 

Alameda  Macadamizing  Co.  v.  Williams 

(Cal.)  (12  Pac.  Rep.  530  [1887]) 449 

Alcorn  v.  Sadler  (Miss.)  (.14  So.  Rep.  444).  185 
Alder  Gulch  Con.  Mfg.  Co.  v.  Hayes  (6 

Mont.  31) 75,  77 

Aldrich  v.  Drury  (8  R.  I.  554) 73 1 

v.  Tripp  (11  R.  I.  141) 145 

Aldridge  v.  Cheshire  R.  Co.  (21  N.  H.  359). 255 
Alexander  v.  Gibbon  (N.  C.)  (24  S.  E. 

Rep.  748) 529 

v.  Gossett  (S.  C.)  (39  Alb.  Law  Jour. 

134  [1888]) 620 

v.  Milwaukee  (16  Wis.  247) 90 

• v.  United  States  (25  Ct.  of  Cl.  '87) 255 

Alhambra  W.  Co.  v.  Richardson  (Cal.)  (14 

Pac.  Rep.  379) 143 

Alien  v.  Worsham  (49  S.  W.  Rep.  525 

[1899])  620 

Allaire  v.  Ketcham  (N.  J.  Ch.)  (35  Atl. 

Rep.  900) 600 

Allan  v.  Comme  (n  A.  &  E.  759) 681 

Allday  v.  Whittaker  (Tex.)  (i  S.  W.  Rep. 

794) 555 

Allen  v.  Atlantic,  etc.,  Tel.  Co.  (N.  Y.)  (21 

Hun  22) 826 

v  Chippewa  Falls  (52  Wis.  430) 85 

v  Evans  (Mass.)  (637  N.  E.  Rep.  570.340 

v  Fisk  (42  Vt.  462) 669 

v  Hooper  (50  Me.  373) 45 

v  McCorkle  (Tenn.)  (3  Head  181)....  85 

v  McKay  (52  Pac.  Rep.  828) 522 


Allis  v.  Field  (Wis.)  (62  N.  W.  Rep.  85)....  529 

Allison  v.  Little  (85  Ala.  512  [1889]) 351,  352 

Alsante  v.  Charlestown  Bridge  Co.  (41  Fed. 

Rep.  365) 121 

Alston  v.  Grant  (3  El.  &  Bl.  128) 267 

Alton  v.  Co.  (12  111.  60) 708 

v.  Meeuwenberg  (Mich.)  (66  N.  W. 

Rep.  571) 706 

Altoona  v.  Shelienberger  (Pa.  Com.  PI.) 

(6  Pa.  Dist.  Rep.  544  [1897]) 150 

Alves  v.  Henderson  (Ky.)  (16  B.  Mon. 

131)  705 

Amer.  Bank  Note  Co.  v.  New  York 

El.  R.  Co.  (N.  Y.  App.)   (29  N.  E.  Rep. 

302)  307 

Amer  R.  W.  Co.  v.  Ansden  (6  Cal.  443)...  243 
Amer.  Teleph.  Co.  v.  Pearce  (71  Md.  535)..  821 
American  Tel.  &  Tel.  Co.  v.  Smith  (Md.) 

(18  Atl.  Rep.  910) .- 444 

Ames  v.  Cannon  R.  Mfg.  Co.  (27  Minn. 

245)  85 

Amy  v.  Watertown  (Wis.)  (22  Fed.  Rep. 

418)  688 

Anaheim  W.  Co.  v.  Semi-Tropic  W.  Co. 

(64  Cal.  185) 71,75 

Anchor  Brew.  Co.  v.  Dobbs  Ferry  (Sup.) 

(32  N.  Y.  Supp.  370 186 

Anderson  v.  Baughman  (7  Mich.  79) 545 

v.  Burnham  (Kan.)  (34  Pac.  Rep.  1056)  521 

v.  Henderson  (111.)  (16  N.  E.  Rep. 

232  [1888]) 179 

v.  Jackson  (Tex.)  (13  S.  W.  Rep.  30)..  499 

v.  McCormick  (Oreg.)  (22  Pac.  Rep. 

1062)  573 

v.  Richardson  (Cal.)  (28  Pac.  Rep. 

679)  575 

Andrews  v.  National  F.  &  P.  Works  (C. 

C.  A.)  (61  Fed.  Rep.  782) '. 874 

Andries  v.  Detroit,  etc.,  Ry.  Co.  (Mich.) 

(63  N.  W.  Rep.  526) 685 

Angle  v.  Young  (Tex.)  (25  S.  W.  Rep. 

798)  626 

Anglecey  v.  Colgen  (N.  J.)  (9  Atl.  Rep. 

105  [1887]) 336,  599 

Anthony  v.  Haney  (8  Bing.  186) 315 

A.  P.  Cook  Co.  v.  Beard  (Mich.)  (65  N. 

W.  Rep.  518) 89,681 

Aransas  Pass  Col.  Co.  v.  Flipper  (Tex.) 

(29  S.  W.  Rep.  813) 579,58o 

Arave  v.  Idaho  C.  Co.  (Idaho)  (46  Pac. 

Rep.  1024) 87,  88 

Archer  v.  Helm  (Miss.)  (12  So.  Rep.  702)  628 

—  v.    Salinas    City    (Cal.)    (28    Pac.    Rep. 

839)  703,  706 

Armstrong  v.  Ristian  (5  Md.  256) 514 

v.  Vicksburg,  etc.,  R.  Co.  (La.)  (16 

So.  Rep.  468) 352 

Arn  v.  Mathews  (Kan.)  (18  Pac.  Rep.  • 

[1888])  555 

Arnold  v.  Foot  (N.  Y.)  (12  Wend.  330)....  60 
Ashcorn  v.  Smith  (Pa.)  (2  P.  &  W.  211)....  591 
Asher  Lumber  Co.  v.  Lunsford  (Ky.)  (30 

S.  W.  Rep.  968) A  406 

Ashton  v.  Blundell  (12  M.  &  W.  524) 252 

Atchinson  v.  Challis  (9  Kan.  603) 186 

Atchison  v.  Peterson  (i  Mont.  561) 75 

v.  Peterson  (20  Wall.  507) 73,75 

xxvii 


XXV111 


TABLE    OF   CASES. 


Atchison  &  N.   R.   Co.   v.   Boerner   (Neb.) 

(51    N.   W.   Rep.  842)  .........  .  ............  759 

Atchison,  etc.,  R.  Co.  v.  Mecklin  (23  Kan. 

167)    ........................................  751 

Atkins  v.  Tompkins  (Mass.)  (29  N.  E. 

Rep.   627)  .............  ......................  661 

Atkinspn  v.  Marietta,  etc.,  R.  Co.  (15  Ohio 

St.   21)  ......................................  749 

-  -  v.  Smith  (Va.)   (24  S.  E.  Rep.  901)....  529 

Atlantic,  etc.,  Tel.  Co.  v.  Chicago,  etc., 

R.  Co.  (U.  S.)  (6  Biss.  158)  ...............  821 

' 


Atty.-Gen'l  v.  Gee  (Eng.)   (10  Eq.   131).  .206,  207 

•  -  v.  Gt.  Eastern  R.  Co.  (23  L.  T.  344) 

-  v.    Hackney    Board  |  (Eng.)    (L.    R. 


^23  L.  T.  344).. 60,  63 

20 

Eq.    626) " '.....  ~  i 211 

• v.   Lonsdale  (7  L.   R.   Eq.  377) 242 

v.   Morris  &  Essex  Ry.   Co.    (19  N.  J. 

Eq.    386    [1869]) 685,756 

v.  Steward  (20  N.  J.  Eq.  415) 209 

v.  United  Kingdom  Tel  Co.  (Eng.)   (30 

Beav.   287) 811 

v.  West.  Wis.  R.  Co.  (36  Wis.  466)....  749 

v.   Woods   (108  Mass.  439) 232 

Auburn,  City  of,  v.  Union  W.  P.  Co.  (Me.) 

(38  Atl.  Rep.  561  [1897,]) 54,  60 

Augusta   v.    Burann    (Ga.)    (19   S.    E.    Rep. 

820)    718 

Augusta,   City   Council  of,  v.   Busim    (Ga.) 

(19  S.    E.    Rep.   820) 666 

Aurora  v.   Lode   (93  111.   521) 188 

• v.  Reed  (57  111.  30) 180 

Austin    v.    Andrews    (Cal.)    (16    Pac.    Rep. 

546    [1888]) 625 

Austin  v.  Brown  (W.  Va.)    (17  S.   E.   Rep. 

207)    516 

v.  Chandler  (Ariz.)   (42  Pac.   Rep.  483.     75 

v.  Hudson  R.  R.  (25  N.  Y.  338,  346) ...  331 

Austin,  etc.,  R.  Co.  v.  Anderson  (Tex.)  (19 

S.   W.   Rep.   1025) 138 

Austrian  v.  Davidson  (21  Minn.  117  [1874])  551 
Avers  v.  Penn.  R.  Co.  (N.  J.)  (3  Atl.  Rep. 

885)    708 

Avery  v.  Empire  W.  Co.  (82  N.  Y.  582) ....  135 
Ayers  v.  Beaty  (Tex.)  (24  S.  E.  Rep.  366) . .  631 
Axline  v.  Shaw  (Fla.)  (17  So.  Rep.  411) 

407,  414 

B. 

Babcock  v.  Herbert  (3  Ala.  392) 240 

Babson  v.  Tainter  (Me.)  (10  Atl.  Rep.  63 

[1887])  376,  421 

Backus  v.  Burke  (Minn.)  (65  N.  W.  Rep. 

459)  521 

Bader  v.  Zeise  (44  Wis.  96) 519 

Badger  v.  Batavia  Paper  Co.  (70  111.  302)..  8 
Bailey  v.  Baker  (Tex.)  (42  S.  W.  Rep.  124)  495 

v.  Surges  (11  R.  I.  330  [1877]) 381 

v.  Knapp  (Me.)  (9  Atl.  Rep.  356  [1887])  5540 

v.  Sweeney  (N.  H.)  (9  Atl.  Rep.  543 

[1887])  444 

v.  Woburn  (126  Mass.  416) 272 

Bakeman  i<.  Talbot  (31  N.  Y.  366) 648 

Baker  v.  Brown  (55  Tex.  377) 71 

v.  Chicago,  etc.,  R.  Co.  (57  Mo.  265)..  735 

v.  Johnson  (21  Mich.  319) 701,702,706 

v.  Morton  (U.  S.)  (12  Wall.  150) 48 

v.  Normal  (81  111.  108)... 319 

v.  Rice  (Ohio)  (47  N.  E.  Rep.  654 

[1897])  7" 

v.  Squire  (i  Mo.  App.  Rep.  683) 709 

St.  Paul  (8  Minn.  491) 706 

v.  Willard  (50  N.  E.  Rep.  620) 307 

Baldwin  v.  Brown  (16  N.  Y.  363) 501 

v.  Durfee  (Cal.)  (48  Pac.  Rep.  724)...  522 

v.  Taylor  (Pa.  Sup.)  (31  Atl.  Rep.  250)  666 

Ball  v.  Nye  (99  Mass.  582) 267 

Ballard  v.  Demmon  (Mass.)  (31  N.  E.  Rep. 

635)  688 

1;.  Struckman  (111.)  (14  N.  E.  Rep.  682 

[1888]) 89 

v.  Tomlinson  (Eng.)  (29  Ch.  Div.  115, 

125)  266,  267 

Ballowe  v.  Hillman  (Ky.)  (37  S.  W.  Rep. 

950)  555,    589 


Baltimore  v.  Fear  (Md.)   (33  Atl.  Rep.  637)  709 
Baltimore  v.  Merryman  (39  Atl.  Rep.  98) . .     54 

v.  Warren  Mfg.  Co.  (59  Md.  96) 202,208 

Baltimore    &    O.    R.    Co.    v.    Gould    (Md.) 

(8  Atl.   Rep.   754   [1887]) 453,455 

Baltimore  &  S.  P.  R.  Co.  v.  Hackett  (Md.) 

(39  Atl.   Rep.   510   [1898] 119 

Baltimore,    etc.,     Co.     v.    Algire     (63    Md. 

319)    663,  741 

Baltimore    Brew.    Co.    v.    Ramstead    (Md.) 

(28  Atl.  Rep.  273) 190 

Baltimore,  City  of,  v.  Frick  (Aid.)   (33  Atl. 

Rep.    435) 707 

Bancroft  v.  Walt  (Com.  PI.)    (6  Ohio  Dec. 

22)    151 

Bangor  House  v.  Brown  (33  Me.  309) 453 

Bankhardt  v.  Houghton  (27  Beav.  425) 741 

Banks  v.  Collins  (Ky.)  (39  S.  W.  Rep.  519)  528 

v.    Ogden    (2   Wall.   57) 379,578 

Barbour  v.  Lyddy  (Cir.  Ct.)   (49  Fed.  Rep. 

896)    714 

Barclay  v.  Howell's  Lessee  (U.  S.)   (6  Pet. 

498)    620,  707 

Bardwell  v.  Ames  (Mass.)  (22  Pick.  333). 406,  431 

Bare  v.   Hoffman   (79  Pa.  St.  71) 104,194 

Barker  v.  Dale  (Pa.)   (3  Pittsb.  Rep.  190)..  283 
Barkley  v.  Tieleke  (2  Mont.  59) 75,76,77 

—  V.  Wilcox  (86  N.  Y.   140) 1720 

Barlow  v.  Chicago,  etc.,  R.  Co  (29  la.  276)  754 
Barnard     v.     Comm'rs     (71     111.     App.     187 

[1897])  "8 

v.  Hinckley  (10  Mich.)  459) 240 

v.  Shirley  (Ind.)  (47  N.  E.  Rep.  671 

[1897])  216 

v.  Shirley  (Ind.)  (34  N.  E.  Rep.  600 

[1893])  208 

Barnes  v.  Sabron  (10  Nev.  217) 75 

—  V.    Marshall    (68    Cal.    569) 134 

Barney  v.  Keokuk  (94  U.  S.  324). 53,  164,  238,  431 
Barnhart  v.   Ehrhart  (Oreg.)   (54  Pac.  Rep. 

195    [1898]) 406,  410 

Baron  v.   Davis  (4  N.   H.  338) 243 

Barre   R.   Co.  v.   Montpelier  &  W.    R.   Co. 

(Vt.)    (17   Atl.    Rep.    923) 75i 

Barre  W.  Co.,  In  re  (62  Vt.  27) 62 

Barrett   v.    Metcalfe    (Tex.    Civ.    App.)    (33 

S.  W.  Rep.  758) 74 

77.    Mt.    Greenwood    Cem.    Ass'n    (111. 

Sup.)    (42  N.    E.    Rep.   891) 208 

v.    Rockport   Ice    Co.    (84   Me.    155)....   165 

Barrows  v.   Fox  (Col.)   (32  Pac  Rep.  811)..     75 
Barry  v.  Edlavicht  (Md.)  (33  Atl.  Rep.  170)  358 

v.   Peterson   (48   Mich.  263) 182 

Bartholomew  v.  Austin   (Tex.   U.   S.    C.   C. 

A.)   (85  Fed.   Rep.  359  [1898]) 147 

— —».  Hamilton  (105  Mass.  239) 8 

Bartlett  v.  Ambrose  (78  Fed.   Rep.  839) 526 

Barton   v.    Union   Cattle   Co.    (Neb.)    (7   L. 

R.    A.    457    [1889]) 208,209 

Barus    v.    Hannibal    (71    Mo.    449) 105 

Basey  v.   Gallagher   (20   Wall.   6?o) 73,75 

Bassett   v.    Martin    (Tex.)    (18   S.    W.    Rep. 

587)    553 

v.  Salisbury  Mfg.  Co.  (43  N.  H.  569). 86,  275 

v.  Sherrod  (Tex.)   (35  S.  W.  Rep.  312), 

554,  555,  559 
Bass  Lake  Co.  v.  Hollenbeck  (n  Ohio  Cir. 

Ct.    Rep.    508) 388 

Batchelder  v.    Keniston   (51    N.    H.   496) 383 

v.  Wakefield   (Mass.)    (8  Cush.  243)....  703 

Bates  v.   State   (31   Ind.   72) 163 

Battner    v.    Baker    (Mo.)    (18    S.    W.    Rep. 

9")    502 

Bauer  v.   Gottmanhansen   (65  111.  499) ..  500 

v.  Taylor  (i   Nev.  &  M.  13) 704 

Bayard   v.   Hargrove    (45   Ga.   342) 708 

Bay     City     Gas     Light    Co.     v.     Industrial 

Works    (28    Mich.    182) 387 

Bavzer    v.    McMillan    Mill    Co.    (Ala.)    (16 

So.    Rep.    923) 243 

Beach  v.   Sterling  Iron  &  Zinc  Co.    (N.  J. 

Ch.)    (33  Atl.    Rep.   286)... 206,  207,  214,  216.  218 
Beal  v.  Asberry  (Tex.)  (20  S.  W.  Rep.  115)  626 

Beaman  v.   Russell    (20  Vt.   205) 47 

Bean  v.  Bachelder  (74  Me.  202) 518 


TABLE    OF   CASES. 


XXIX 


Beardslee  v.  French  (7  Conn.  125) 707 

Beardsley  v.  Crane  (Minn.)  (54  N.  W.  Rep. 

740) SOD,  501,  502,  577,  579 

Bear  Lake  &  R.  W.  &  Irr.  Co.  v.  Garland 

(17  Sup.  Ct.  Rep.  7) 75 

Bear  River  &  Auburn  W.  &  M.  Co.  v. 

N.  Y.  Mg.  Co.  (8  Cal.  327) 75 

Beasley  v.  Shaw  (6  East  208) 212 

Beatty  v.  Kurtz  (U.  S.)  (2  Pet.  266) 703 

Beaty  y.  Dor.ier  (Ky.)  (34  S.  W.  Rep.  524)  555 
v.  Robertson  (Ind.  Sup.)  (30  N.  E. 

Rep.  706  [1892]) 600 

Beaver  Brook  Res.  &  C.  Co.  v.  St.  Vrain 

Res.    &    Fish    Co.    (Colo.   App.)    (40   Pac. 

Rep.  1066) 75,  76 

Becker  v.  Marble  Cr.  Irr.  Co.  (Utah)  (49 

Pac.  Rep.  892  [1897]) 75 

Beckman  v.  Davidson  (Mass.)  (39  N.  E. 

Rep.  38) 493,  5i8 

Beckwith  v.  Shordike  (4  Burrow  2092) 352 

Bedell  v.  Rittenhouse  Co.  (Com.  PI.)  (5 

Pa.  Dist.  Rep.  689) 342 

Bedlow  v.  New  York  Dry  Goods  Co.  (N. 

Y.)  (19  N.  E.  Rep.  800  [1889]) 516 

Beecher  v.  Galvin  (Mich.)  (39  N.  W.  Rep. 

469  [1889]) 627 

Behrer  v.  Dienhart  Harness  Co.  (Ind. 

App.)  (49  N.  E.  Rep.  296  [1898]) 328 

Belleone  v.  Huddlen  (Pa.)  (16  Atl.  Rep. 

764  [1889]) 186 

Bell  v.  McClintock  (Pa.)  (9  Watts  119)....  85 
Bejlinger  v.  N.  Y.  Central  R.  Co.  (23  N. 

Y.  42  [1861]) 116 

Bellis  v.  Bellis  (122  Mass.  414  [1877]) 532 

Bell  Teleph.  Co.  v.  Belleville  Elec.  L.  Co. 

(12  Ont.  Rep.  571) 295 

Belton,  City  of,  v.  Baylor  Female  College 

(Tex.)  (33  S.  W.  Rep.  680) 205 

v.  Central  Hotel  Co.  (Tex.)  (33  S.  W. 

Rep.  297) 205 

Be'ltz  v.  Mathiowitz  (Minn.)  (75  N.  W. 

Rep.  699) 577,  578 

Benedict  v.  Gaylord  (n  Conn.  333  [1836])  571 
v.  Johnson  (Ky.)  (42  S.  W.  Rep.  335 

[1897!)  715 

Benjamin  r.  Manistee  R.  Imp.  Co.  (42 

Mich.  628) 245 

Benner's  Lessee  v.  Platter  (6  Ohio  505) 401 

Bennett  v.  Latham  (Tex.)  (45  S.  W.  Rep. 


934   [1898]).. 


601 


v.  Murtaugh    (20    Minn.    151) 103,179 

v.    National    Starch    Mfg.    Co.    (Iowa) 


(72  N.  W.  Rep.  507  [1897]). 
Benson    v.    Daly    (Neb.)    (56    N.    W.    Rep. 


380 


788)    498,  500 

v.  Morrow  (6.1  Mo.  347) 431 

Benthal  v.   Seifert   (77  Ind.   302) 136 

Bently  v.   Root  (R.  I.)    (32  Atl.   Rep.  918), 

650,  717 
Benton  v.  Johncox  (Wash.)    (49  Pac.   Rep. 

v.   Mclntire  (N.  H.)    (15  Atl.  Rep.  413 

[1888])    549 

Berkowitz  v.   Brown  (23  N.   Y.   Supp.  792), 

516,  528 
Bernheimer  v.  Kilpatrick  (6  N.  Y.  St.  Rep. 

858)    324 

Berridges  v.  Ward  (Eng.)   (10  C.  B.  N.  S. 

400  [1861])    454 

Berry  v.  Watson  (15  Atl.  Rep.  618  [1888])..  612 
Berry-Horn    Coal    Co.    v.    Scruggs-McClure 

Coal  Co.   (62  Mo.  App.  93) 721 

Best  v.  Hammond  (55  Pa.  St.) 558 

Bickett  v.   Morris   (i  H.   L.   Cas.  47) 109 

Biddle    Boggs    v.    Merced    Mfg.     Co.     (14 

Cal.    279) 75 

Bierer  v.   Hurst    (Pa.    Sup.)    (26  Atl.    Rep. 

Bigelow  v.'  Draper  '(N.'  D'.)  "  (69'  N.'  'w. '  Rep'. 

570)    742 

v.  Hilleman  (37  Me.  52) 703 

v.  Hoover  (Iowa)  (52  N.  W.  Rep.  124), 

378,  432 
—  v.  Nickerson  (C.  C.  A.)   (70  Fed.  Rep. 

"3)     231,  421 


Biles    v.    Tacoma    O.    &    G.    H.    R.    Co. 

(Wash.)  (32  Pac.  Rep.  211) 730 

Bills  v.  Belknap  (36  Iowa  583) 319. 

Bird  v.  N.  J.  &  N.  Y.  R.  (Sup.)  (38 

N.  Y.  Supp.  281) 516 

v.  Perkins  (33  Mich.  28  [1875]) 551 

Birmingham  v.  Anderson  (48  Pa.  St.  253).  613: 
Birmingham  Trac.  Co.  v.  Bell  Teleph.  Co. 

(Ala.)  (24  So.  Rep.  731  [1898]) 296 

Bishop  v.  North  Adams  Fire  Dist.  (Mass.) 

(45  N.  E.  Rep.  925) 843,847 

Bissell  v.  N.  Y.  Cent.  R.  Co.  (23  N.  Y.  61 

[1861])  453,  703. 

Black  v.  Ballymera  Comm'rs  (L.  R.  17  Ir. 

— V  '  Pratt'  'Coal '  &'  'Coke'  'Co'.' ' (Ala.)' '  (5  ^ 

So.    Rep.    89) 551 

Blackburn  v.   Nelson    (Cal.)    (34   Pac.    Rep. 

775)    632- 

-  v.  Walker  (N.  D.)  (75  N.  W.  Rep.  787)  578. 

Blackburner  v.  Somers  (L.  R.  5  Ir.  i) 212 

Blackman  v.  Riley  (N.  Y.  App.)   (34  N.  E. 

Rep.   214)    i 445,451 

Blair  v.  Brown  (Wash.)   (50  Pac.  Rep.  483)  579 

v.  Deakin  (Eng.)   (57  L.  T.   N.  S.  522)  214 

Blaird  v.  Williamson  (15  C.  "B.  N.  S.  376)..  .267 
Blaire  v.  Brown  (Wash.)  (50  Pac.  Rep.  483 

[1897])    577 

Blaisdell  v.  Portsmouth,  etc.,  R.  Co.  (51  N. 

H.    483) 740- 

—  v.  Stephens  (14  Nev.  17) 214 

Blake  v.  Doherty  (5  Wheat.  359) 612 

Blakely  v.   Quinlan    (Ky.)    (39   S.   W.    Rep. 

Blakey ' v. '  Morris'  '(Va!) '  (17'  S.'  E!  'Rep! '  126)  546 
Blanchard  v.  West.  Union  Tel.  Co.  (60  N. 

Y.  510) 242 

Bland  v.   Smith   (Tex.)    (43   S.    W.   Rep.  49 

[1897])    410. 

Blane  v.  Stewart  (2  Iowa  383) 45 

Blaney  v.  Rice  (20  Pick  62) 606- 

Blashfield    v.     Empire    State    Teleph.     Co. 

(Sup.)    (18  N.   Y.   Supp.  250) 817 

Blewett  v.  Tregonning  (3  Al.  &  El.  554) 162. 

Bliss  v.  Greeley  (45  N.  Y.  671) 260,261 

v.  Johnson  (76  Cal.  597  [1888] 71,  132. 

v.  Johnson   (94  N.  Y.  235   [1883]) 251 

Block  v.   Haseltine   (Ind.   App.)    (29  N.   E. 

Rep.  937) 328,  331 

Blodget  v.    Royalton    (14  Vt.   288) 706- 

Blodgett  &    D.    Lumber   Co.   v.    Peters   (87 

Mich.  498) 383- 

Bloodgood  v.  Ayers  (108  N.  Y.  400  [1888]), 

252,  254 
v.  Mohawk  &  H.  R.  Co.  (14  Wend.  51, 

18  Wend.  9) 352,  353,  755, 

Bloom  v.  West  (Colo.  App.)   (32  Pac.  Rep. 

846)    77 

Bloomfield,  etc.,  Co.  v.   Calkins   (62  N.   Y. 

386)    841,  843. 

Bloomfield,  etc.,  Nat.   Gas  Co.  v.   Richard- 
son (N.  Y.)   (63  Barb.  437) 842 

Bloomfield  R.  Co.  v.  Grace  (Ind.)  (13  N.  E. 

Rep.  680  [1887]) 735 

Bloomington,    City    of,    v.    B.    Cem.    Assn. 


(111.)  (18  N.  E.  Rep.  298  [1889]) 503,504 

Blount  v.  Bleker  (Tex.)  (35  S.  W.  Rep.  863)  552 
Blum  v.  Bowman  (C.  C.  A.)   (66  Fed.  Rep. 


883) :.  612 

v.  Rice  (Tex.)  (32  S.  W.  Rep.  1056)....  614 

Blumenthal  Co.  v.  Broock  (Mo.  Sup.)  (29 

S.  W.  Rep.  836) 633 

Blythe  v.  Southerland  (3  McCord  259)  (and 

i  Greenl.  Ev.  Sec.  145) 620 

Bd.  of  Comm'rs  v.  Carpenter  (Minn.)  (58 

N.  W.  Rep.  295) 407 

Bd.  of  Comm'rs  v.  Younger  (29  Cal.  173 

[1865])  588,  590 

Bd.  of  Ed.  v.  Trustees,  etc.  (63  111.  204) 736 

Board  v.  Lederer  (N.  J.  Ch.)  (29  Atl.  Rep. 

444)  302,  307 

Boardman  v.  Scott  (Ga.)  (30  S.  E.  Rep. 

982  [1897]) 423- 

Bodine  v.  Exch.  Fire  Ins.  Co.  (51  N.  Y. 

"7)    477 


XXX 


TABLE   OF  CASES. 


Bogan  v.  Daughdrill  (51  Ala.  312) 474 

Bohrer  v.  Dienhart,  H.  Co.  (Ind.  App.) 

(45  N.  E.  Rep.  668) 321,323 

Boland  v.  St.  John's  School  (Mass.)  (39  N. 

E.  Rep.  1035) 441,449 

Bonaparte  v.  Camden  &  A.  R.  Co.  (Bald. 

C.  C.  205) 352,755 

Bonewitz  v.  Wygant  (75  Ind.  41) 387 

Bonner  v.  Wirth  (Texas)  (24  S.  W.  Rep. 

306)  191 

Bonney  v.  Stoughton  (122  111.  536) 688 

Booker  v.  McBride  (Tex.  Civ.  App.)  (40 

S.  W.  Rep.  1031) 114 

Booth  v.  Small  (25  Iowa  177) 521 

Borchardt  v.  Wausaw  B.  Co.  (54  Wis.  107)  90 
Borchsenius  v.  Chicago,  etc.,  Ry.  Co. 

(Wis.)  (71  N.  W.  Rep.  884) 120,191 

Borel  v.  Rollins  (30  Cal.  408) 530 

Borkenhagen  v.  Vianden  (Wis.)  (52  N.  W. 

Rep.  260) 573 

Borough  v.  Allegheny  Val.  R.  (Pa.)  (25 


683 
for   (N.   Y.)    (2  Sandf.   552)..  847 


Atl.   Rep.  518). 

Borrell  v.   Mayor   (N.    Y.)    (2  Sandt.   51 
Boston  &  A.  R.  Co.  v.  Cambridge  (Mass.) 


(34  N.  E.  Rep.  382) 751 

Boston  v.  Brookline,  Town  of  (Mass.)  (30 

N.  E.  Rep.  611) 843 

v.  Lecraw  (U.  S.)  (17  How.  426).  .703,  704 

v.  Richardson  (Mass.)  (13  Allen  146, 

i54»  155,  l6°  [1886]) 454,607,843 

Boston  Mfg.  Co.  v.  Burgin  (114  Mass.  340)  134 
Boston  Roll.  Mills  v.  Cambridge  (117  Mass. 

396)  204 

Boston  W.  P.  Co.  v.  Boston,  etc.,  R.  Co. 

(Mass.)  (23  Pick.  360) 745,847 

Boston  W.  P.  Co.  -v.  Gray  (6  Met.  169 

[1843])  473 

Boston  Water-power  Co.  v.  Hanlon  (132 

Mass.  483) 622,  623 

Bosworth  v.  Sturtevant  (2  Cush.  392) 557 

Botsford  v.  Wallace  (Conn.)  (37  Atl.  Rep. 

902)  717 

Bouquois  v.  Monteleone  (La.)  (17  So.  Rep. 

305) 321,  330 

Bouvier  v.  Stricklett  (Neb.)  (59  N.  W. 

Rep.  550  [1894]) 377,390 

Bowen  v.  Cooper  (Pa.)  (7  Watts  311  [1838])  469 
v.  Gaylord  (N.  C.)  (29  S.  E.  Rep.  340 

[1898]) 576 

Bowlby  v.  Shively  (Ore.)  (30  Pac.  Rep. 

154,  160) 376 

Bowlsby  v.  Speer  (31  N.  J.  L.  351). ..  .1720,  191 

Bowman  v.  Farmer  (8  N.  H.  402) 408,573 

Boyd  v.  Woolwine  (W.  Va.)  (21  S.  E.  Rep. 

1020)  715 

Boyden  v.  Walkley  (Mich.)  (71  N.  W. 

Rep.  1099) 664 

Boyd's  Lessee  v.  Graves  (4  Wheat.  513) 502 

Boyer  v.  Little  Falls  (Sup.)  (38  N.  Y. 

Supp.  1114) 644,  843,  844 

Boynton  v.  Gilman  (53  Vt.  17) no 

v.  Middlesex  Mut.  Fire  Ins.  Co.  (45 

Mass.  215) 687 

Brace  v.  Penn.  W.  Co.  (7  Pa.  Dist.  R.  71 

[1897])  148 

Bracken  v.  Jones  (63  Tex.  184) 528 

• r.  Union  Pac.  Ry.  Co.  (C.  C.  A.)  (75 

Fed.  Rep.  347) 530 

Bradbury  v.  Corry  (59  Me.  494) 499 

Bradley  v.  Christ's  Hosp.  (4  Mann.  &  G. 

761) 327 

v.  Pharr  (La.)  (12  So.  Rep.  618) 379,442 

• v.  Rice  (13  Me.  198) 421 

Bradshaw  v.  Duluth  Imperial  Mill  Co. 

(Minn.)  (53  N.  W.  Rep.  1066) 381,388 

Brady  v. *  Blackington  (113  Mass.  245) 374 

• v.  Hayward  (72  N.  W.  Rep.  233) 1720 

Brain  v.  Marfell  (41  L.  T.  N.  S.  455) 261 

Brainard  v.  Clapp  (Mass.)  (10  Cush.  6)..  319 
Branch  v.  Simons  (Tex.)  (48  S.  W.  Rep.  40)  588 
Brandt  v.  Ogden  (N.  Y.)  (i  Johns.  156)..  603 

Brass  v.  Rathbone  (153  N.  Y.  435) 150 

Bray  v.  Adams  (Mo.  Sup.)  (21  S.  W.  Rep. 

853)    547 


Brayden  v.  New  York,  etc.,  R.  Co.  (Mass.) 

(51  N.  E.  Rep.  1081) 685 

Brayton  v.  Fall  River  (113  Mass.  218) 243 

Breen  v.  Donnelly  (Cal.)  (15  Pac.  Rep.  845 

[1888])  577 

Brenham  v.  Brenham,  W.  Co.  (67  Tex.  542)  147 
Brent  v.  Smith  (Cranch  C.  C.  672  [1840])..  449 

Brewer  v.  R.  R.  Corpu  (5  Mete.  478)  500 

Brewster  v.  Rogers  Co.  (N.  Y.)  (42  App. 

Div.  343  [1899]) 2ii 

Bridge  Co.  v.  U.  S.  (105  U.  S.  470) 873 

Bridges  v.  Pierson  (45  N.  Y.  601,  604) 572 

Brigan'iine  i>.  Holland  Trust  Co.  (N.  J. 

Ch.)  (35  Atl.  Rep.  344) 706 

Briggs  v.  Knickerbocker  Ice  Co.  (Sup.)  (32 

N.  Y.  Supp.  95) 164 

Brigham  v.  Agr.  Br.  R.  Co.  (Mass.)  (i  Al- 
len 316) 749 

v.  Salene  (15  Ore.  208) 667 

v.  Thompson  (Tex.)  (34  S.  W.  Rep. 

358)  555 

Briscoe  v.  Puckett  (Tex.)  (12  S.  W.  Rep. 

978)  493 

Bristol  Hy.  Co.  v.  Boyer  (67  Ind.  236) 61,85 

Briton  v.  Ferry  (14  Mich.  53) 579 

Broaddus  v.  Eubanks  (Ky.)  (38  S.  W.  Rep. 

134)  : 553,  578>  580 

Broadmoor  Dairy  v.  Brookside  Co.  (Colo.) 

(52  Pac.  Rep.  792  [1897]) 62,63 

Broder  v.  Natoma  W.  Co.  (101  U.  S.  274) 

(50  Cal.  621) 73,77 

v.  Saillard  (2  Ch.  Div.  692) 272 

Broiestedt  v.  Railroad  Co.  (55  N.  Y.  220, 

13  N.  Y.  Supp.  626) 307 

Bromberg  v.  Yukers  (Ala.)  (19  So.  Rep. 

49)  633 

Brooklyn  v.  Jourdon  (7  Abb.  N.  C.  23)....  846 
Brooklyn  Cent.  R.  Co.  v.  Brooklyn  C.  R. 

Co.  (32  Barb.  358)... 846 

Brooklyn  Park  Comni'rs  v.  Armstrong  (45 

N.  Y.  234) 708 

Brooks  v.  Curtis  (4  Lans.  287)  (50  N.  Y. 

639)  181,  340 

Brookville  &  M.,  etc.,  Co.  v.  Butler  (91  Ind. 

134)  164,  166 

Broome  v.  N.  Y.,  etc.,  Teleph.  Co.  (49  N. 

J.  Law  624) 812,823 

Brophy  v.  Richeson  (Ind.  Sup.)  (36  N.  E. 

Rep.  424)  407,423 

Brose  v.  Boise  City  P.  Co.  (Id.)  (51  Pac. 

Rep.  753  [1897]) 633 

Brown  v.  Bailey  (Pa.)  (28  Atl.  Rep.  245)..  494 
v.  Baraboo  (Wis.)  (74  N.  W.  Rep. 

223  [1898]) 449 

v.  Best  (i  Wils.  174) IPS 

v.  Bocquin  (Ark.)  (20  S.  W.  Rep.  813)  528 

813)  528 

v.  Bush  (45  Pa.  St.  61) 85 

v.  Byne  (3  El.  &  Bl.  703) 54^ 

v.  Carthage  (Mo.  Sup.)  (30  S.  W. 

Rep.  312)  553 

v.  Chadbourne  (31  Me.  9) 242 

v.  Cockerel  (33  Ala.  38) 518 

v.  Dean  (123  Mass.  254) 82 

v.  Fishel  (Sup.)  (31  N.  Y.  Supp.  361)  612 

36i)  612 

v.  Gray  (Me.)  (3  Greenl.  126) 518 

v.  Heard  (85  Me.  294) 407.-548 

v.  Hines  (Ind.  App.)  (44  N.  E.  Rep. 

655)  683 

v.  House  (N.  C.)  (24  S.  E.  Rep.  786)..  583 

v.  Illius  (27  Conn.  84) 264,268 

v.  Kistler  (Pa.)  (42  Atl.  Rep.  885)....  252 

v.  Lakeman  (Mass.)  (17  Pick.  447) 373 

v.  Leath  (Tex.)  (42  S.  W.  Rep.  655)...-  7'5 

v.  Manning  (6  Ohio  298) 704 

v.  Manter  (22  N.  H.  472) 35* 

v.  Merrill  (Mich.)  (51  N.  W.  Rep.  700)  573 

700) 573 

v.  Mullin  (65  Cal.  89) 75 

v.  O'Brien  (Mass.)  (47  N.  E.  Rep.  195)  34Q 

• v.  Pine  Creek  Ry.  Co.  (183  Pa.  St.  38)  115 

v.  Rose  (55  Iowa  734) 52i 

v.  Schofield  (N.  Y.)  (8  Barb.  243)....  243 


TABLE    OF  CASES. 


XXXI 


Brown  v.  Vandergrift  (80  Pa.  St.  147) 281 

v.  Willey  (42  Penn.   St.  205) 542,  612 

v.  Windsor  (i  Crompt.  and  J.  20).. 325,  326 

Brownson  v.   Scanlan   (59  Texas  222) 528 

Bruening    v.    Dorr    (Colo.    Sup.)    (47    Pac. 

Rep.  290)    no 

Brunswick,  etc.,  R.  Co.  v.  Waycross  (Ga.) 

17  S.   E.   Rep.  647) 709 

Bryan  v.  Beckley  (Ky.)  (Litt.  Sel.  Cas.  91)  561 
Bryant  v.  Bigelow  C.  Co.  (131  Mass.  491)..  112 
— —v.  Maine  Cent.  R.  Co.  (Me.)  (9  Atl. 

Rep.  354   [1887]) 583 

v.  SicCandless  (7  Ohio  Pt.  II.   135) 703 

Brymer  v.  Butler  VV.  Co.  (Pa.)  (33  Atl.  Rep. 

707)    (36  Atl.    Rep.    249) 148,151 

Bryn     Mawr    Hotel     Co.     v.     Baldwin     (12 

Montg.    Co.    Law    Rep.    145) 713 

Buchanan  v.   Logansport,   etc.,    R.   Co.    (71 

Ind.    265) 265 

v.  Roy's  Lessee  (2  Ohio  St.  263) 573,598 

Buck  v.  Squires  (22  Vt.  484), 

407,  446,  447,  450,  605,  607 

Bucki  v.  Cone  (25  Fla.  i) 240 

Bucklin  v.  Truell  (54  N.  H.  122  [1873])....  143 
Bnckner  v.  Anderson  (N.  C.)  (16  S.  E. 

Rep.   424)    493,584 

Buffalo   v.    Del.,    L.    &    W.    R.    Co.    (Sup.) 

(39  N.   Y.   Supp.  4) 414,  706,  709 

Buffalo  Pipe  Line   Co.  v.   New  York,  etc., 

R.  Co.   (N.  Y.)   (10  Abb.  N.  Cas  107)....  242 

Buffum  v.  Harris  (5  R.  I.  243) 261 

Bughman  v.  Byers   (Pa.)    (12  Atl.   Rep.  357 

[1888])    ::.  612 

Bullard    v.    Saratoga    Mfg.    Co.    (77    N.    Y. 

525)     83 

Bullock  v.   West  Chic.   Rap.  Trans.   R.   Co 

(23   Chic.   L.   N.    149) 789,790 

Bunce  v.  Wolcott  (2  Conn.  27) 687,688 

Burch  v.  Blair  (Ky.)   (41  S.  W.   Rep.  547)..  675 

Burgess  v.   Pollock  (53  la.  273) 42 

Burke    v.    McCowen    (Cal.)    (47    Pac.    Rep. 

_  367) 573,  599 

Burlington    v.    Burlington    St.    T.    Co.    (49 

la.    144) 789 

v.  Burlington  W.  Co.   (86  la.  266) 148 

Burlington   Waterworks   Co.   v.    Burlington 

(43    Kan.    275) 148 

Burlock  v.  Taylor  (16  Pick.  335  [1835])  408 

Burnett  v.  Whitesides  (15  Cal.  35) 75 

Burnhara's   Heirs   v.    Hitt    (45   S.    W.    Rep. 

368)    573 

Burrell  v.   Burrell   (11   Mass.  294) 311 

Burris    v.    Fitch    (Cal.)    (18    Pac.    Rep.    864 

[1888])    ......?  502 

Burress  v.  Hines  (Va.)  (26  S.  E.  Rep.  875)  336 
Burrows  v.  Gibson  (Mich.)  (3  N.  W.  Rep. 

—  v.  Whitman  (59  Mich.  279) 231,234 

Burton  v.  Scherpf  (Mass.)  (i  Allen  135)..  667 
Burwell  v.  Hobson  (Va.)  (12  Gratt.  322)...  132 
Buse  v.  Russell  (86  Mo.  209,  211).  ..380.  431,  432 
Bush  v.  Artesian  Hot  &  Cold  W.  Co.  * 

(Idaho)  (43  Pac  Rep.  69) ...  148 

Bushey  v.  Santiff  (Sup.)  (33  N.  Y.  Supp. 

Bushnel'l  v.  Scott  (21  Wis.  457)...'  '.'.  704 

Bushy  v.  Santiff  (Sup.)  (33  N.  Y.  Supp. 

473)  716 

Busk  v.  Manghum  (Tex.)  (37  S.  W.  Rep. 

459)  574,  577 

Buskirk  v.  King  (C.  C.  A.)  (72  Fed.  Rep. 

Busse  v.   Covington   (Ky.)"(38'S."w."Rep'. 

,,865)    :.  626 

Butchers'  Ass'n  v.   Commonwealth   (Mass.) 

(47  N.   E.   Rep.  '  "    " 

Butler  v.  Bertram 

342)  . 

v.  Drake  (Minn.)   (64  N.  W.  Rep.  559)  502 

v.  G    R.  &  I.  R.  Co.  (85  Mich.  246)559'  431 

v.  Vicksburg  (Miss.)   (17  So.  Rep.  605) 

Butte   Canal   8:  Ditch   Co.   v.   Vaughn  S(°ii'  *" 
Cal.   143) 7S 


••   599   [1897])- 

m  (Mich.)   (56  N.  W.  Rep. 


Butterfield  v.  Reed  (Mass.)  (35  N.  E.  Rip. 

1128)  650 

Butte  Table  M.  Co.  v.  Morgan  (19  Cal. 

609)  75,  77 

Bynem  v.  Carter  (N.  C.)  (4  Ired.  310) 521 

Byrne  v.  Farmington  (64  Conn.  367) 119 

v.  Lowry  (19  Ga.  27) 530 

Byrn  v.  Kleas  (Tex.)  (39  S.  W.  Rep.  980)  559 


C. 


Cable  v.   Jackson    (Tex.)    (42   S.    W.    Rep. 

136)  . 626 

Cabot  v.  Kingman  (136  Mass.  403) 334 

Cache  La  Poudre  Irr.  Co.  v.  Larimer  & 

Weld  Reservoir  Co.  (53  Pac.  Rep.  318)....  77 
Cadeau  v.  Elliott  (Wash.)  (34  Pac.  Rep. 

916)  572,  573 

Cadwalder  v.  Nash  (Cal.)  (14  Pac.  Rep.  385 

[1887])  555,625 

Cagney  v.  Sweet  (67  111.  App.  641)  [1896])  340 
Cairo  V.  &  C.  Ry.  Co.  v.  Brevoort  (C.  C.) 

(62  Fed.  Rep.  129) 131,  137 

Cairo,  etc.,  R.  Co.  v.  Stevens  (73  Ind.  278) 

J34>  *36 

Caldwell  v.  Craig  (Va.)  (21  Gratt.  137) 590 

v.  Dickin'son  (13  Gray  (Mass.)  365)....  485 

v.  Sanderson   (69  Wis.  62) 83 

Caledonian    R.    Co.   v.   Sprot    (2   Macq.    H. 

L.   Cas.  479) 325 

California,   etc.,   Tel.    Co.   v.   Alta  Tel.   Co. 

(22  Cal.  398) 822 

Calmelet  v.   Sichl    (Neb.)    (67   N.   W.   Rep. 

467)    340 

Calvert  v.  Weddle  (Ky.)  (44  S.  W.  Rep.  648 

1898])    717 

Cameron  v.  Chicago,  M.  &  St.  Paul  Ry.  Co. 

(Minn.)    (61   N.   VV.  Rep.  814) 516 

Campbell    v.    Carruth    (Fla.)    (13    So.    Rep. 

432)    544,  55i,  588 

v.  Durham  (Ala.)  (5  So.  Rep.  507  [1889])  493 

v.   Indianapolis,  etc.,   R.   Co.    (no  Ind. 

49°)    665,  740,  741 

v.    Morgan    (Sup.)    (22    N.    Y.    Supp. 

1001)    555 

Canadian    Pac.    R.    Co.    v.    West.    Un.    Tel. 

Co.   (17  Sup.   Ct.  Can.   151) 819 

Canal   Commissioners  v.    People    (5   Wend. 

(N.    Y.)    423) 421 

Canal  Co.  v.  Hull  (i  Man.  &  Gr.  392) .. 704,  706 
Canfield  v.  Clark  (Oregon)  (21  Pac.  Rep. 

443    [1889]) 518 

Canton,   etc.,   R.    Co.   v.    Paine    (Miss.)    (19 

So.  Rep.  199) 192 

Cantwell  v.   Knoxville,   C.   G.   &  L.   R.   Co. 

(Tenn.)   (18  S.  VV.  Rep.  271) 116 

Capitol  City  G.  Co.  v.  Charter  Oak  Ins.  Co. 

51  la.  31)   847 

Card  v.  McCaleb  (69  111.  314) 167,  169 

Cardoza   v.    Calkins    (Cal.)    (48    Pac.    Rep. 

1010)    75 

Carhart   v.   Auburn    Gas.    Lt.    Co.    (N.    Y.) 

(22    Barb.    297) 216,221,264 

Carl  v.  W.  Aberdeen  Co.  (Wash.)   (43  Pac. 

Rep.    890) 54,  105 

Carleton  v.  Reddington  (i  Fost.  291) 500 

Carli  v.  Stillwater  St.  R.  Co.  (28  Minn.  373)  781 
Carll  v.  Northport  (9up.)  (42  N.  Y.  Supp. 

576)    190 

Carlisle  v.  Cooper  (19  N.  J.  Eq.  256  [1868])  681 
Carlisle  Gas  &  W.  Co.  v.  Carlisle  W.  Co. 

(182  Pa.   St.   17) 664 

Carondelet  C.   Nav.   Co.  v.   Parker   (29  La. 

Ann.  430)   241 

Carothers  v.   Phila.   Co.    (118  Pa.   St.  468)..  283 

v.  Buckman  (Ky.)   (41  S.  W.  Rep.  579)  448 

v.  Gold  (Va.)   (14  S.  E.  Rep.  329) 5« 

v.  Gwynn  (35  Barb.  (N.  Y.)  395) 703 

Carr  v.  Berkley  (Mass.)  (14  N.  E.  Rep.  746 

[1888])    551 

Carriger  v.    E.    Tennessee    R.    Co.    (Tenn.) 

(7  Lea  388) 117 


XXX11 


TABLE   OF  CASES. 


Carroll  v.  Price  (D.  C.)  (81  Fed.  Rep.  137) 

388,  583 

v.  Smith  (Md.)   (4  Har.  &  J.  128) 312 

v.   State   (23  Ala.  28) 343 

Carron  v.   Wood  (10  Mont.  500) 102 

Carson   v.    Centner    (Oreg.)    (52   Pac.    Rep. 

506  [1898])    74 

Carstarphen  v.   Holt   (Ga.)    (23   S.   E.    Rep. 

904)    498 

Carter '  v.  Chavalier  (Ala.)   (19  So.  Rep.  798) 

544,  548 

v.  Clark  (Me.)  (42  Atl.  Rep.  398  [1898])  620 

v.  Hornback  (Mo.)  (40  S.  W.  Rep.  893)  577 

v.  Portland,  City  of -(4  Oreg.  339) 708 

—. —  v.  Thurston   (58  N.   H.   104) 231 

v.   Wallace    (2   Tex.   206) 352 

Caruthers  v.    Pemberton    (i    Mont,    in) 75 

Gary  v.   Daniels  (Mass.)   (8  Met.  466) 58 

Case    v.     Cayuga    Co.     (Sup.)     (34    N.     Y. 

Supp.   595) 759 

Casebeer  v.   Mowry   (55   Pa.   St.  419) 85 

v.  Hoffman  (Wis.)   (72  N.  W.  Rep.  390 

[1897])     1720,  253 

Casey  v.  Dunn  (8  N.  Y.  Supp.  305  [1890])..  587 
Cashman    t.    Cashman's    Heirs    (Mo.)    (27 

S.  W.  Rep.  549) 523 

Cass  v.  Dicks  (Wash.)  (44  Pac.  Rep.  113)..  173 

Casselbery  v.  Ames  (13  Mo.  App.  575) 325 

Cassidy  v.   Charlestown   Savings  Bank  (149 

Mass.  325) 550 

-v.   Chicago,   etc.,   R.    Co.    (70  Wis.  441)  741 

Castello  v-   Landwehr  (28  Wis.  522) 240 

Castleberry  v.   Atlanta    (74  Ga.    164) 319 

Catalino  v.  Decker  (38  Conn.  362) 516 

Cates    v.    Wadlington    (S.    C.)    (i    McCord 

583)     233,  243 

Cathedral   Parkway   (N.   Y.)    (20  App.   Div. 

404)    45i,  454 

Cavazos  v.  Trevino   (16  Wallace  773  [1867]) 

550,  588,  611 

Cedar  Falls  v.  Hansen  (73  N.  W.  Rep.  585)  187 
Cen.   Pa.   Teleph.   Co.   v.  Wilkesbarre,  etc., 


R.  Co.   (n   Pa.  Co.  Ct.  Rep.  417)  .........  829 

He 

Central  Un.  Teleg."Co.  v.   Sprague  E.   Ry. 

.  El. 


Center   St.    Church    v.    Macliias'  Hotel    Co. 
(51    Me.   4i3_[i864]). ._ _._. .._...  605 


&  M.  Co.   (Ohio  Com.  PI.)   (2  Amer. 

Cas.    307    [1889])  ........................  295,296 

Chabert  v.  Russell  (Mich.)   (67  N.  W.  Rep. 

Chace  v.  '  Warsaw  'w!  '  Co.'  '(Sup.)'  '('29'  N'.'  Y'.  ^ 

Supp.  729)  ..................................  108 

Chadwell  v.  Chadwell  (Tenn.)  (23  S.  W. 

Rep-.  973)  ................................  467,  498 

Chadwick  v.  Davis  (143  Mass.  7  [1886])  ----  447 

Chaflin  v.  Gantz  (Sup.)  (39  N.  Y.  Supp. 

712)    ........................................  600 

Chalmers  v.  Brown  (Tex.)  (2  S.  W.  Rep. 

518)    ........................................  555 

Chamberlain  v.  Abadie  (La.)  (19  So.  Rep. 

—  \>.  B!'&'6.''R'.'Ca'(Md.')''(8'A't'l.''Rep.  ^3 

267    [1887])  ......  -.  ..........................  260 

Chamberlain   v.    Hemmingway    (Conn.)    (22 

L.  R.  A.  45)  ................................  378 

Chamberlin  v.  Spargus  (22  Hun  437)  ........     45 

Chambers  v.    Ringstaff   (60  Ala.    140)  .......  552 

Champlain,  etc.,   Ry.   Co.  v.  Valentine   (N. 

Y.)    (19  Barb.  491)  .........................  421 

Champlin  v.    Pendleton   (13   Conn.   23)..  448,  449 
Chandler  v.   Kent   (8  Minn.   525)  ............     45 

-  v.  Lazarus  (Ark.)   (18  S.  W.  Rep.  181), 

182,  183 
Chapman  v.   Crooks    (41    Mich.   595)  ........  499 

Chapman  v.  Mad  River,  etc.,  Co.,  (6  Ohio 

St.    119)  .....................................  748 

Chappel  v.  Smith  (80  Mich.  100)  ............  185 

Chappin  v.  Hunt  (40  Mich.  595  [1879])  ......  530 

Charles  v.  Rankin  (22  Mo.  566,  573)-327,  325,  33* 
Charnock  v.  Hignerra  (Cal.)   (44  Pac.  Rep. 

171)    ........................................     75 

Chase    v.    Martin    (Me.)    (15    Atl.    Rep.    68 

[1888])    .....................................  612 

Chase  v.  Oshkosh   (81  Wis.  315)  ............  319 

v.  Silverstone  (62  Me.  175)  ..............  259 


Chasemore  v.  Richards  (7  H.  L.  Cas.  349)  275 

Chatfield  v.  Wilson  (27  Vt.  670  [1854]) 104 

Chauvet  v.  Hill  (g3  Cal.  407) 1720 

Cheffee  v.  Telepnone,  etc.,  Construction 

Co.  (77  Mich.  625) 826 

Chelsea  Dyehouse  v.  Commonwealth  (164 

Mass.  350) 334 

Cheney  v.  New  York,  etc.,  R.  Co  (App. 

Div.)  (40  N.  Y.  Supp.  1103) 448 

Chesley  v.  Holmes  (40  Me.  536) 583 

Chesp.,  etc.,  Teleph.  Co.  v.  MacKenzie  (74 

Md.  36) 812,  816 

Chessley  v.  King  (74  Me.  164) 261 

Chester  Emery  Co.  v.  Lucas  (112  Mass.  424 

[1873])  -. 550,  55i,  554 

Chiatovich  v.  Davis  (17  Nev.  133) 75. 

Chicago  v.  Chicago,  R.  I.  &  P.  Ry.  Co. 

(111.  Sup.)  (38  N.  E.  Rep.  768) 685 

v.  Drexel  (111.)  (30  N.  E.  Rep.  774)..-.  705 

Chicago  v.  Howes  (169  111.  260) 677 

v.  Illinois  Steel  Co.  (66  111  App.  561)..  756 

v.  Law  (111.  Sup.)  (33  N.  E.  Rep.  855), 

—  v.   McGinn   (51  111.  266) .7  240 

Chicago  v.   Powers'  Admr.    (42  111.    169) 720 

Chicago,  B.  &  Q.  R.  Co.  v.  Emnert  (73  N. 

W.    Rep.    540) 173 

Chicago,    etc.,    R.    Co.    v.    Groh    (Wis.)    (55 

N.    W.    Rep.   714) 522 

Chicago  &  N.  W.  R.   Co.  v.   Hoag  (90  111. 

339   [1878]) 678 

Chicago,   R.   I.   &   P.   R.   v.   Moffit   (75   111. 

524   [1874]) 88 

Chicago,  etc.,  Bridge  Co.  v.  Pac.  Mut.  Tel. 

Co.    (36   Kan.    113) 824 

Chicago,  etc.,   Railroad   Co.  v.   Morrow   (42 

Kan.    339) 1720 

Chicago    Railroad   Co.    z\    Paddock    (75   111. 

616)    731 

Chicago  City  R.  Co.  v.  People  (73  111.  571)  789 
Chicago   &    P.    R. .  Co.   v.    Jtein    (75    111.    41 

[1874])    721 

Chicago    &    E.    I.    R.    Co.    v.    Wright    (111. 

Sup.)   (38  N.  E.  Rep.  1062) 755 

Childs  v.  Cent.   R.   Co.   (33  N.  J.  Law  323)-   739- 

Child  v.  Starr  (N.  Y.)  (4  Hill.  369) 235 

China  it.  Southwick  (12  Me.  238) 90 

Chipman  v.   Palmer  (77  N.   Y.  51   [1879]), 

202,  209,  214 

Chisholm  v.   Caines   (C.   C.)    (67  Fed.    Rep. 

285)    683 

Chope    v.    Detroit,    etc.,    Pk.    Rd.    Co.    (37 

Mich.    i9S).v-: ••  —  ••  —  ••••.• 75; 

Church  v.  He 

v.     Stiles     (Vt.)      (10 

[1887])    448,449-  573,582- 

Churchill  v.   Bauman   (Cal.)    (30   Pac.    Rep. 

770) 662 

v.  Beethe  (Neb.)   (66  N.  W.  Rep.  992), 

178,  186- 
v.  Burlington  Water  Co.  (Iowa)  (62  N. 

W.    Rep.    646) 307 

Cihak  v.   Kleke   (17  111.   App.    124) 705 

Cincinnati  v.   White   (U.    S.)    (6   Pet.   431), 


[oboken  (33  N.  J,  L.  13) . 

Atl.      Rep.      674 


Cincinnati,     etc.,     R.     Co.     v. 

Teleph.   Assn.    (48  Ohio   St. 

Citizens'  Gas,  etc.,  Min.-Co.  v. 


704,  706 
City,     etc., 

>o) 296,  831 

Llwood  (114 

Ind.  338). 283 

Citizens'   Nat.    Gas.    Co.   v.   Shenango   Nat. 

Gas  Co.    (Pa.)   (20  Atl.  Rep.  947  [1890])..  284 

City  v.  Hinkson  (87  111.  587) 7o8 

City,   etc.,   Tel.    Co.  v.   Cincinnati,   etc.,   R. 

Co.  (Ohio)  (23  Wkly.  L.  Bull.  165) 831 

City    Power    Co.    v.     Fergus     F.     W.     Co. 

(Minn.)  (56  N.  W.  Rep.  685) 75 

City  W.  Co.  v.  State  (Tex.)  (33  S.  W.  Rep. 

259)    14? 

Clafflin  v.   Boston,  etc.,  R.  Co.   (Mass.)   (32 

N.  E.  Rep.  659) 685 

v.  Carpenter  (Mass.)  (4  Met.  580) 667 

Clancy  v.  Hondlett  (39  Me.  451) 521 

Clapp  v.  Birmingham  (9  Cow.  563) 687 

Clark  v.   Burt   (Mass.)    (4  Cush.  396) 48? 

v.  Campan  et  al.  (19  Mich.  329) 387 


TABLE   OF   CASES. 


XXX111 


Clark  v.  Cambridge,  etc.,  Co.  (Neb.)  (64  N. 

W.  Rep.  239) 234 

v.  Comford  (La.)  (12  So.  Rep.  763) 516 

v.  Conroe  (38  Vt.  469) 261 

v.  Dasso  (34  Mich.  86J 319 

v.  Davis  (Super.  Ct.)  (19  N.  Y.  Supp. 

IQI,  28  Abb.  N.  C.  135) 501 

Clark  v.  Farnsworth  (Kan.)  (53  Pac.  Rep. 

93  [1898]) 590 

v.  Graham  (6  Wheat.  577) 45 

v.  Lancaster  (36  Md.  196  [1872]) 560 

v.  Lawrence  (N.  C.)  (6  Jones  Eq.  83)..  267 

—  v.      Munyan      (Mass.)      (22     Pick.     410 

[1839])  ••••;> v 557'  576>  £25 

• v.  Owens  (18  N.  Y.  434) 622 

v.  Peckham  (10  R.  I.  35) '• 242 

v.  Powers  (45  111.  283  [1867]) 553 

v.  Troy  (20  Cal.  219) 45 

v,  Willett  (35  Cal.  534) --75.  77 

Clarke  v.  French  (122  Mass.  419) 82 

Clarkston  v.  Va.  C.  &  I.  Co.  (Va.)  (24  S. 

E.  Rep.  937) 553 

Classes  v.  Chesapeake  Co.  (Md.)  (31  Atl. 

Rep.  808) 383 

Clay  v.  Postal  Tel.  Co.  (70  Miss.  406) 319 

Clay  Co.  L.  &  C.  Co.  v.  Montague  Co 

(Tex.)  (28  S.  W.  Rep.  704) 625 

Clemens  v.  Speed  (Ky.)  (19  S.  W.  Rep. 

660)  327,  328 

Clement  v.  Comstock  (2  Mich.  359  [1852]).  482 
Clement  Mfg.  Co.  v.  Wood  (Mass.)  (38  N. 

E.  Rep.  444) 85 

Clements  v.  State  (105  N.  Y.  621) 274 

Cleveland  v.  Choate  (Cal.)  (18  Pac.  Rep. 

875  [1888]) 555 

v.  Flagg  (4  Cush.  76,  81) 551 

• v.  King  (132  U.  S.  295) 721 

Cleveland,  C.  &  S.  Ry.  Co.  v.  Knicker- 
bocker Trust  Co.  (U.  S.  C.  C.)  (86  Fed. 

Rep.  73  [1898]) 5,731 

Cleveland,  etc.,  Ry.  Co.  v.  Nuttall  (59  111. 

App.  639) 114,  :38 

v.  Spear  (56  Pa.  St.  326) 745 

Clifford  v.  Atl.  Cot.  M.  (146  Mass.  47) 182 

Cline  v.  Baker  (N.  C.)  (24  S.  E.  Rep.  516), 

fey.  X38 

Clinton    G.    Lt.    Co.   v.    Fuller    (Mass.)    (48 

N.    E.    Rep.    1024) 55 

Clipper  v.  Sage  (Tex.)  (37  S.  W.  Rep.  363)  555 
Clowes  v.  Staffordshire  Potteries  (Eng.) 

(L.   R.  8  Ch.   126) 207 

v.    Sterling    I.    &    Z.    Co.    (N.    J.    Ch.)    ' 

(33  Atl.   Rep.  286) 218 

Clute  v.  Briggs  (22  Wis.  607  [1868]) 410 

v.    Carr   (20   Ves.    531) 662 

Coakley    v.    Boston,    etc.,    R.    Co.    (Mass.) 

(33  N.  E.  Rep.  930) 683 

Coatsworth    v.    Lehigh    Val.    Ry.    Co.    (48 

N.   Y.   Supp.  511) 721 

Cobb  v.  Davenport  (32  N.  J.  Law  369) 421 

• v.  Lavalle  (89  111.  331) 378 

v.  Smith   (38  Wis.  21) 90 

v.  Taylor  (Ind.)  (33  N.  E.  Rep.  615)..  554<* 

Coburn   v.    San    Mateo    Co.    (C.    C.    N.    D. 

Cal.)    (75   Fed.    Rep.   520), 

352,  407,  410,  520,  683,  703 
Cochran  v.   Smith   (Sup.)    (26  N.   Y.   Supp. 

103)    589,  61 1 

Coe  v.  N.  J.  Mid.  R.  Co.  (31  N.  J.  Eq.  105)  751 
Coffin  v.  Left  Hand  Ditch  Co.  (6  Colo. 

443)    75 

Coffman  v.  Robbins  (8  Oreg.  278) 71 

Cogswell  v.  Forrest  (Wash.)   (43  Pac.  Rep. 

1098)    414 

Cohen  v.  Bellenot  (Va.)   (32  S.  E.  Rep.  455 

[1899]) 215 

v.    Simmons    (Sup.)    (21    N.    Y.    Supp. 

385)     324,  327 

Coker  v.  Simpson  (7  Cal.  340) 75 

Colchester  v.  Roberts  (4  M.  &  W.  769)....  681 
Cold  Sp.  I.  W.  v.  Talland  (4  Cush.  492)...  401 

Cole  v.  Bradbury  (86  Me.  380) 143 

v.  Logan   (Oreg.)   (33  Pac.   Rep.  568)..     75 

Coleman  v.    Drane    (Mo.)    (22   S.   W.    Rep. 

801)    497 


Coleman  v.  Foster  (i  N.  H.  37) 669 

v.  Manhattan  Beach  Ins.  Co.  (94  N. 

Y.  229  [1883]) 546,554,591 

v.  Pickett  (Sup.)  (31  N.  Y.  Supp.  480)  516 

v.  State  (N.  Y.  App.)  (31  N.  E.  Rep. 

902) 106,  107 

Collins  v.  Chartiers  Val.  Gas  Co.  (131 

Penn.  St.   143) 269 

—  v.  Howard  (N.  H.)  (18  Atl.  Rep.  794)..  243 

v.  Macon  (69  Ga.  542) 134 

v.  Sutton  (Va.)  (26  S.  W.  Rep.  415)..  620 

v.  St.  Peters  (Vt.)  (27  Atl.  Rep.  425)..  717 

v,  Waltham  (151  Mass.  198) 186 

Coloney  v.  Farrow  (Sup.)  (36  N.  Y.  Supp. 

164)  * 85 

Colrick  v.  Swinbure  (N.  Y.)  (12  N.  E.  Rep. 

427  [1887]) 109,  no,  in 

v.  Me 


Colter 


[ann  (18  Minn.  96  [1871]), 
57i,  587,  5 
Loiter  (i  Mont. 


549,  57i,  587,  590,  598,  599 
;.    Ho" 


Columbia   Mining 

296)  75 

Columbia  Oil  Co.  v.  Blake  (Ind.  App.)  (42 

N.  E.  Rep.  234) 551 

Columbus  v.  Dahin  (36  Ind.  330) 703 

v.  Hydraulic  Woolen  Mills  Co.  (33  Ind* 

435)  204 

Columbus  G.  L.  &  C.  Co.  v.  Freelaod  (12 

Ohio  St.  392) 264,305 

Columbus  &  W.  Ry.  Co.  v.  Witherow 

(Ala.)  (3  So.  Rep.  23  [1888]) 442,447 

Comanche  v.  Zettlemoyer  (Tex.)  (40  S.  W. 

Rep.  641) 189,  272 

Combs  v.  Agricultural  Ditch  Co.  (17  Colo. 

146) 81 

Commis'sioners  v.  Kemphall  (N.  Y.)  (26 

Wend.  404) 421 

v.  Morgan  (Kan.)  (52  Pac.  Rep.  896 

[1898])  606 

- — v.  Towanda  W.  W.  Co.  (Pa.)  (15  Atl. 

Rep.  440  [1888]) 148 

Comm'rs  of  Burke  Co.  v.  Catawba  L.  Co. 

(N.  C.)  (20  S.  E.  Rep.  707) 243 

Comm'rs  of  Warren  Co.  v.  Comm'rs  of 

Butler  Co.  (4  Ohio,  N.  P.  349  [1897])....  603 
Commonwealth  v.  Alburger  (Pa.)  (i 

Whart.)  469 

v.  Alger  (Mass.)  (7  Cush.  97) 431 

-v.  Boston  (97  Mass.  555) 812- 

v.  Cent  Pass.  R.  Co.  (52  Pa.  St.  519)..  793 

v.  Charlestown  (Mass.)  (i  Pick.  180)..  374 

v.  Crosscut  R.  Co.  (53  Pa.  St.  62)....  745. 

v.  Erie,  etc.,  R.  Co.  (27  Pa.  St.  339), 

v.   Essex  Co.   (Mass.)   (13  Gray  239)...  765 

-v.  Fisher  (Pa.)  (i  P.  &  W.  462).:  ....  252. 
v.  Fitchburg  R.  Co.  (Mass.)  (8  Cush. 

240)    745, 

—  v.  Reed  (34  Pa.  St.  275) 303. 

v.  Russell  (Pa.)  (33  Atl.  Rep.  709).  .207,  221 

v.  Warwick  (Pa.)  (40  Atl.  Rep.  93 

[1898]  813,  816,  825,  830 

Comstock  v.  Sharp  (Mich.)  (64  N.  W.  Rep. 

22)  650 

v.  Smith  (26  Mich.  306) 47 

Conboy  v.  Dickinson  (Cal.)  (28  Pac.  Rep. 

809)  330- 

Concord  v.  Burleigh  (N.  H.)  (36  Atl.  Rep. 

606)  306- 

Concord  Mfg.  Co.  v.  Robertson  (N.  H.) 

(25  Atl.  Rep.  718) 421 

Cone  v.  Hartford  (28  Conn.  363) 205. 

Conger  v.  Burlington,  etc.,  R.  Co.  (41  la. 

419)  665; 

v.  Weaver  (6  Cal.  548) 75,77 

Conhocton  S.  R.  Co.  v.  Buffalo,  etc.,  Co. 

(N.  Y.)  (3  Hun  523) 115 

Connecticut  Mut.  Life  Ins.  Co.  v.  Stinson 

(62  111.  App.  319) 455 

Connor  v.  Johnson  (S.  C.)  (30  S.  E.  Rep. 

833  [1898]) 583 

Conner  v.  Sullivan  (40  Conn.  26  [1873]) 678 

Conrad  v.  Arrowhead  Hotel  Co.  (Cal.)  (37 

Pac.  Rep.  386) 205 

v.  Ithaoa  (16  N.  Y.  161) 215 

Cook  v,  Babcock  (Mass.)  (7  Cush.  526).. 550,  55; 


XXXIV 


TABLE   OF  CASES. 


Cook  v.   Burlington  (30  Iowa  94) 379 

v.   McClure  (58  N.  Y.  437) 423,578 

v.  Stearns  (n  Mass.  533) 669,740,741 

Cook,  A.   P.,  Co.  v.   Beard   (Mich.)    (65  N. 


W.    Rep.   518) 89,681 

"    "de      ".    .  '" 

v.  McKinney  (Ga.J  (14  S.  E.  Rep.  ^190) 


Cooley  v.  Golden  (117  Mo.  33) 

v.  McKinney  (Ga.)  (14  S. 

Cooper  v.  Deal  (Mo.  Sup.)   (22  S.  W.  Rep. 

'584)""""""" 
County '  '(Cal.')'  '  '(38  '  Pac'. 


Detroit    (42    Mich. 
v.   Hall   (5  Ohio  321), 


576 
707 


Monterey 

Rep.  106) 683 

Copeland  v.  Wading  Riv.  Res.  Co.  (105 

Mass.  397  [1870]) 469 

Copper  v.  Dolvin  (68  la.  757) 180,181 

Cornelius  v.  Giberson  (25  N.  J.  Law  i) 533 

Cornell  v.  Jackson  (9  Met.  150) 551 

Correll  v.  Cedar  Rapids  (Iowa)  (81  N.  W. 

Rep.  724) -. 303 

Cosgrove  v.  Kingston  C.  C.  (Pa.)  (40  Atl. 

Rep.  151  [1898]) 448 

Costello  v.  Harris  (Pa.  Sup.)  (29  Atl.  Rep. 

874)  644 

Cotes  v.  Davenport  (9  La.  227) 190 

Cottingham  v.  Seward  (Tex.)  (25  S.  W. 

Rep.    797) » 626 


Cottle  v.  Young  (59 

Cottrell    v.    Marshall    Infirmary    (Sup.)    (24 


Me.   105)  ...............  448 

87 


N.   Y.   Supp.   381) 
Coulthard  v.  Davis  (Iowa)   (70  N.  W.  Rep. 

716)    390 

Countryman  v.   Lighthill   (N.   Y.)    (24  Hun 

405)    317 

County  v.  Newport  (Ky.)   (12  B.  Mon.  538)  708 
Covert  v.  Valentine  (Sup.)  (21  N.  Y.  Supp. 

219)    102 

Covington  v.   Becker  (5  Nev.  281) 53 

v.  Geylor  (Ky.)  (19  S.  W.  Rep.  741), 

328,  330,  332 
Covington,  etc.,   R.   Co.  v.   Kenton   Co.   Ct. 

(Ky.)    (12   B.    Mon.    144) 765 

Covington   St.    R.    Co.   v.    Covington    (Ky.) 

(9  Bush  127) 788 

Cowdrey  v.  Woburn  (136  Mass.  409) 272 

Cowles  v.  Kidder  (24  N.  H.  364) 88 

Cowling  v.  Higginson  (4  M.  &  W.  245) 681 

Cox  if.  Arnold  (Mo.  Sup.)    (31   S.  W.   Rep. 

592)    380 

v.    Daugherty    (Ark.)    (36   S.    W.    Rep. 

184)    492,  528 

v.  Finks  (Tex.)  (41  S.  W.  Rep.  95)  .577,  630 

v.  Freidley  (33  Pa.  St.  124  [1859]) 449 

v.   Hart  (12  Sup.   Ct.   Rep.  962) 555 

v.  Matthews  (i  Vent.  237) 325 

Coyne   v.    Mississippi    &   R.    R.    Boom    Co. 

(75    N.   W.    Rep.    748) 243 

Craig  T^Hawkins^  (Ky.)    (i   Bibb  53) 603 


-  v.  Kline  (65  Pa.  St. 


v.    Rochester    City    R.    Co. 


(39    N.    Y. 

'(24"S."W. 

Rep*. 


378 


404)    

Crandall    v.    Allen    (Mo.    Sup.) 

Rep.    172) 

v.    Smith    (Mo.    Sup.)    (36   S.    W. 

612)    ...."..  378 

v.   Woods   (8  Cal.    136) 74 

Crane  v.   Winsor  (2  Utah  248) 75,209 

Crawford   v.    Orr   (84  N.    C.   246) 466,  485 

—  v.   Rambo    (44  Ohio   St.   282   [1886]), 

132,  134,  173,  382 

Creasey  v.  Alverson   (43  Mo.  13,  21) 558 

Creech  v.  Davidson  (Tex.)   (23  S.  W.  Rep. 

995)    597 

Creighton    v.    Kaweah    Canal    Co.    (67    Cal. 

221)    ».  I0i,  108 

Crimson  -v.  Deck  (84  Iowa  344) 319,  717 

Crispin   v.    Hannovan    (50   Mo.    =536) 532 

Crocker  v.   Collins   (S.   C.)    (15   S.   E.    Rep. 

95i)    650 

• v.  Cotting  (Mass.)   (44  N.  E.  Rep.  214)  450 

• v.  Manhattan  L.   Ins.   Co.  (N.  Y.  Sup. 

Ct.   [1900]) 308 

Crockett  v.  Boston  (Mass.)  (5  Cush.  182).  706 
Croker  v.  Bragg  (N.  Y.)  (10  Wend.  260)..  432 
Croime  v.  Board  (71  Ind.  208) 167,169 


§§ 

Cronin  v.  Gore  (38  Mich.  381) 611 

Cronkhite  v.  Cronkhite  (94  N.  Y.  323 

[1884]) 662 

Crooked  Lake  Nav.  Co.  v.  Kenha  Nav. 

Co.  (4  N.  Y.  St.  Rep.  380) 421 

Crooker  v.  Benton  (Cal.)  (28  Pac.  Rep. 

Crooks'  'v'.  '  Whit'ford  '  (47*  Mich.'  '383)  '.'.'.'.'.'.'.'.  '552 
Croosdale  v.  Lanigan  (Sup.)  (13  N.  Y. 

Supp.  31  [1891]) 329 

Croosley  v.  Lightowler  (Eng.)  (L.  R.  2  Ch. 

478)  213,  214,  216 

Crosby  v.  Bessey  (49  Me.  539) 222 

Cross  v.  Kitts  (Cal.)  (22  The  Reptr.  361 

[1886])  1720,  252,  254,  262 

v.  Tyrone  M.  &  M.  Co.  (121  Pa.  St. 

394  [1888])  573,580,611,626 

Crowell  v.  Manges  (2  Gilm.  419) 500 

Cruikshanks  v.  Wilmer  (Ky.)  (18  S.  W. 

Rep.  1018)  407 

C.  S.  &  C.  R.  R.  Co.  v.  Tuttle  (7  Ohio 

Dec.  63)  574,598 

Culbertson  v.  Duncan  (Pa.)  (13  Atl.  Rep. 

966  [1888])  491,499,502 

Cumberland  Teleph.  Co.  v.  United  Elec. 

R.  Co.  (42  Fed.  Rep.  273) 296,827,830,832 

Cummings  v.  Barrett  (Mass.)  (10  Cush. 

186)  .. 167 

v.  Blanchard  (N.  H.)  (36  Atl.  Rep. 

556)  75,  84 

v.  Toledo  (12  Ohio  C.  C.  650) 194,272 

Cunningham  v.  Hendricks  (Wis.)  (62  N. 

W.  Rep.  410) 713 

v.  San  Saba  Co.  (Tex.)  (20  S.  W.  Rep. 

940  683 

Curdy  v.  Stafford  (Tex.)  (30  S.  W.  Rep. 

55i)  555 

v.  Stafford  (Tex.)  (27  S.  W.  Rep.  823)  526 

Curran  v.  McGrath  (67  111.  App.  566) 764 

Currier  v.  Marietta,  etc.,  R.  Co.  (11  Ohio 

St.  228) 747 

v.  Nelson  (Cal.)  (31  Pac.  Rep.  531)....  603 

Curtis  v.  Aronson  (7  Atl.  Rep.  886). 542,  573,  620 

v.  Hoyt  (19  Conn.  1^4) 706 

v.  Jackson  (13  Mass.  507) 102 

Cushman  v.  Coleman  (Ga.)  (19  S.  E.  Rep. 

46)  516 

v.  Highland  Ditch  Co.  (Colo.  App.) 

(33  Pac.  Rep.  344) 216 

v.  Smith  (34  Me.  256) 353.755 

Cutts  v.  Hussy  (15  Me.  241) 273 


D. 

Dale  v.  Jackson  (8  N.  Y.  Supp.  715) 502 

Dalton  v.  Angus  (6  App.  Cas.  Eng.  740).  326 

v.  Bowker  (8  Nev.  190) 75,  77 

- — v.  Cleveland,  C.,  C.  &  St.  L.  Ry.  Co. 

(Ind.  Sup.)  (43  N.  E.  Rep.  130) 306 

v.  Rentaria  (Ariz.)  (15  Pac.  Rep.  37 

[1888])  75 

Dalzell  v.  Indianapolis,  etc.,  R.  Co.  (32 

Ind.  45) 794 

Dana  v.  Jackson  St.  Wh.  Co.  (31  Cal.  118 

[1886])  373,  381 

Daniels  v.  Chicago,  etc.,  R.  Co.  (35  la.  129)  738 

—  v.  Fitzhugh   (Tex.)   (35  S.  W.   Rep.  38)  580 
Darge    v.    Haricon    I.    Mfg.    Co.    (22    Wis. 

691)  485 

Dark  v.  Johnson  (55  Pa.  St.  564) 281 

Darling  v.  Stanwood  (Mass.)  (14  Allen  504)  477 
v.  Thompson  (Mich.)  (65  N.  W.  Rep. 

754)  87,  88 

Dauer  v.  Hildebrandt  (Mich.)  (68  N.  W. 

Rep.  145) 497 

Daugherty  v.  Gates  (Tex.)  (35  S.  W.  Rep. 

937) 546 

—  v.  Warren  (85  N.  C.  136) 86 

Davenport  v.  Tarpin  (43  Cal.  598) 499 

Davidson  i>.   Pickard   (Tex.   Civ.   App.)    (37 

S.  W.  Rep.  374) 493 

v.  Sanders  (i  Pa.  Super.  Ct.  Rep.  432)  187 

v.  Shuler's  Heirs  (N.  C.)  (26  S.  E. 

Rep.    340) 553,  612 


TABLE   OF  CASES. 


XXXV 


Davis  v.  Baylor  (Tex.)  (19  S.  W.  Rep.  523)  573 

v.  Caldwell  (AlaJ  (18  So.  Rep.  103) 502 

v.   Comm'rs   (111.   Sup.    (33  N.   E.    Rep. 

58)    178 

• v.  Gale  (32  Cal.  26) Z5,  76 

V.   Harvard  (15  S.  &  R.   165   [i~ 
56  Bjii 


v.  Lambertson  (N.  Y.)   (56 


[1827]).... 
;irb.  480) . . 


Londgreen   (8  Neb.   43) 179 

Rainsford  (17  Mass.  R.  207  [1821])..  613 


v.  San  Lorenzo  R.  Co.  (47  Cal. 


—  v. 
650) 


Spalding    (Mass.)    (32 


E.    Rep*. 


353 


Day 


tep. 

.260,  261 

Stephens  (7  Carr  &  Payne  570) 704 

_Adarns  (42  Vt.  520)... ._. ._. 45 


v.  Pittsburg,  Y.  & 


Co.  (22  Reptr. 


533    [1886]) 401,  414 

v.   Railroad   Co.    (Ohio)    (22   Reptr.   533 


444 


(135   Mass.   55    [1883]).. 447,  448 
5    (N.    C.)    (26   S.    E.    Rep. 


[1886]) 

Dean  v.   Lowell 
Deaver    v.    Jones 

156)    ' 577,  579,  58o 

De    Baker   v.    So.    Cal.    Ry.    Co.    (Cal.)    (39 

Pac.   Rep.  610) 52,  137 

De  Baum  v.  Bean  (N.  Y.)  (29  Hun  236)....     83 
De    Camp   v.   Thompson    (Sup.)    (44   N.   Y. 

Supp.   1014) 243 

Decatur  v.  Niedermeyer  (168  111.  68) 573,599 

Deerfield    v.    Arms    (Mass.)     (17    Pick.    41 

[1835])     387,  431 

v.    Conn.    R.    Co.    (Mass.)    (11    N.    E. 

Rep.   105   [1887]) 716 

Deer    Lake    Co.    v.    Mich.     L.    &    I.    Co. 

(Mich.)   (50  N.  W.  Rep.  807) 521 

DeGive  v.   Seltzer   (64  Ga.  423) 267 

De  Grillian  v.   Frawley  (La.)    (19  So.   Rep. 

I5l)          K 701 

De  Lancy  v.  Piepgras  (N.  Y.  App.)  (33  N. 

E.   Rep.  822) 376,413 

• v.  Boston  (Del.)  (3  Harr.  489) 107 

Delaware  v.  Smith  (i  Del.  Ch.  i) 591 

Delaware  L.  &  W.  R.  Co.  v.  Breckenridge 

(N.  J.)    (41   Atl.   Rep.   966) 535 

• v.  Hannon  (37  N.  J.  Law  276) 383 

Delhi,   Trustees  of,  v.   Youmans   (50   Barb. 

316   [1867]) 252,  262 

Delong  v.  Baldwin  (Mich.)  (69  N.  W.  Rep. 

831)     498,  501 

v.  Mulcher  (47  Iowa  445  £1877]) 525 

Demuth  v.  Amweg  (90  Pa.  St.  181  [1879])..  684 
Denison   Paper   Co.  v.   Robinson  Mfg.   Co. 

(74  Me.  116) 81 

Dennett  v.   Dennett   (44  N.   H.   538) 42 

Denny    v.    Cotton    (Tex.)    (22    S.    W.    Rep. 

122)    .377, 406, 409 

Denver,   etc.,    R.    Co.    v.    Canon    City,   etc., 

R.  Co.   (99  U.  7 

v.  Denver  City 

v.     Lockwood     (Kan.)     (38     .Fac.     Kep 

794)    544 

De    Roachemont    v.    Boston,    etc.,    R.    Co. 

(N.   H.)    (15  Atl.    Rep.   131    [1888]) 712 

Detroit  v.  Railroad  Co.  (23  Mich.  173).  .704,  706 
Detroit  &  B.  C.  R.  Co.  v.  Bush  (43  Mich. 

571)    8 

Devoe  v.  Smeltzer  (la.)  (53  N.  W.  Rep.  287)  717 
Devonshire  v.  Elgin   (Eng.)   (14  Beav.  530)    61 

Dibble  v.    Rogers    (13   Wend.   536) 502 

Dick  v.  Caldwell  (14  Nev.  167) 

Dicken  v.   Liverpool  Salt  &  Coal  Co.    (W. 


.    uo.    v.    canon    city,   etc., 

JS.  463) 751 

"ity  R.   Co.   (2  Col.  673) 797 

Dd    (Kan.)     (38    Pac.     Rep. 


75 


Va.)  (23  S.  E.  Rep.  582) 701 

Dickinson  v.  Amherst  Water  Co.  (139  Mass. 

212)  605,  606 

v.  Gd.  June.  C.  Co.  (L.  R.  7  Exch. 

282)  259,  262,  267,  275 

Dickson  v.  Baker  (65  111.  518) 188 

Diedrich  v.  N.  W.  R.  Co.  (42  Wis.  248), 

I34»   3&2.   421 

Diehl  v.  Zanger  (39  Mich.  601  [1880]), 

Dillett  v.  Kemble  (N.  J.)  (10  C.3E.'  GreJne  S™ 

66)     499 

Dilley  v.  Sherman  (2  Nev.  67) 77 

Dillingham  v.  Smith  (30  Me.  370) 421 

Dillon  v.   Barnard  (21   Wai.  430) 8 

Dingman  v.  Kelley  (7  Ind.  717) 19 


Dobbins   v.    Missouri,    etc.,    R.    Co.    (Tex.) 

(41  S.  W.  Rep.  62) 191 

v.  Missouri,  etc.,  R.  Co.  (Tex.)  (41  S. 

W.  Rep.  306) 191 

Dobson  v.  Finley  (N.  C.)  (8  Jones  495) 623 

v.  Hohenadel  (Pa.  Sup.)  (23  Atl.  Rep. 

1128) 600 

Dodd  v.  Holme  (i  A.  &  E.  493) 327 

v.  Witt  (139  Mass.  63) 606 

Dodge  v.  Berry  (N.  Y.)  (25  Alb.  L.  Jour. 

303)  : 166 

v .  Council  Bluffs  (57  la.  560) 146,  147 

—  v.   Marten   (7  Oreg.  456) 77 

Doe  v.  Attica  (7  Ind.  641) 702 

v.    Brown    (4   Ind.    143) 687 

v.   Jones   (n   Ala.   63) 703 

v.   Prettyman   (Del.)    (i   Houst.  339) 42 

v.  Roe  (Del.  Super.)   (32  Atl.  Rep.  391, 

7    Houst.   386) 516 

v.  Thompson  (5  Cowen  371) 571 

v.    Vallejo    (20    Cal.    386) 588,589,590 

—  v.  Wood  (2  Barn.  &  Aid.  724) 667 

Doherty  v.  Thayer  (31   Cal.   140  "[1866]) 624 

Dohoney  v.  Womack  (Tex.)  (20  S.  W.  Rep. 

950)  554 

Donahue  v.  Morgan  (Colo.)  (50  Pac.  Rep. 

1038  [1897]) 664 

Donaldson  v.  Hibner  (55  Mo.  492) 499 

v.  Oleonor  (45  N.  Y.  Sup.  Ct.  27) 530 

v.  Rail  (Tex.)  (37  S.  W.  Rep.  16). .  .467,  495 

Donehoo  v.  Johnson  (Ala.)  (21  So.  Rep. 

70)  553 

Donelson  v.  Posey  (13  Ala.  752) 42 

Donohue  v.  Whitney  (N.  Y.  App.)  (30  N. 

E.  Rep.  848) 624 

Doolittle  v.  Bailey  (la.)  (52  N.  W.  Rep. 

337)  501,  580 

v.  McCullogh  (7  Ohio  St.  299) 48 

Dorgan  v.  Weeks  (Ala.)  (5  So.  Rep.  581 

[1889])  55i 

Dorman  v.  Ames  (12  Minn.  451) 85 

Dorr  -v.  Hammond  (7  Colo.  79) 76 

—  v.   School   Dist.    (40  Ark.   237) 520,526 

Dorrity  v.   Rapp   (72  N.   Y.  307) 324,  330 

Dorsey  v.    Habersack   (Md.)    (35  Atl.    Rep. 

96)  337,  340 

Doucette  v.  Little  Falls  Imp.  &  Nav.  Co. 

(Minn.)  (73  N.  W.  Rep.  847  [1898]) 85 

Dougherty  v.  Stepp  (i  Dev.  &  Battle  371) 

[1835])  352 

Doughty  v.  Sommerville  &  E.  R.  Co.  (3 

Halst.  Ch.  51,  63) 353 

Douglass  v.  Coonley  (Sup.)  (32  N.  Y. 

Supp.  444) 649 

v.  Irvine  (126  Pa.  St.  643  [1889]) 521 

v.  Shunway  (Mass.)  (13  Gray  498) 667 

Dowdle  v.  Cornue  (S.  D.)  (68  N.  W.  Rep. 

194)  .- 579 

Downing  v.  Dinwiddie  (Mo.  Sup.)  (33  S. 

W.  Rep.  470) 516 

v.  Mayes  (IK.)  (38  N.  E.  Rep.  620)....  530 

Drake  r.  Hamilton  W.  Co.  (99  Mass.  574)  84 

—  v.    Wells    (Mass.)    (n    Allen    141) 669 

Drew  v.   Hicks   (Cal.)    (35  Pac.   Rep.  563), 

178,  212 

v.  Smith  (46  N.  Y.  204,210) 558 

Drucker  v.  Manhattan  Ry.  Co.  (N.  Y.)  (12 

N.  E.  Rep.  568  [1887]) 764 

Drury  v.  Midland  R.  Co.  (127  Mass. 

571) 623 

Dubois  v.  Beaver  (25  N.  Y.  123) 312,313,314 

—  v.    Du    Bois    W.    Co.    (Pa.    Sup.)    (35 
Atl.    Rep.    248) 148 

Dubuque  v.  Coman  (64  Conn.  475) 521 

v.  Maloney  (9  Iowa  450) 703 

Dubuque  &  Dak.  R.  Co.  v.  Diehl  et  al.  (64 

Iowa)  751 

Dudden  v.  Glutton  Union  (i  H.  &  N. 

627)  1720 

Duer  v.  Doherty  (U.  S.)  (26  Pittsb.  Leg. 

J.  104) 717 

Duesler  v.  Johnstown  (48  N.  Y.  Supp.  683 

[1898]) 54,  55 

Duke  v.  Helms  (Tenn.)  (45  S.  W.  Rep. 

465)    522 


XXXVI 


TABLE   OF  CASES. 


ss 

Dumont  v.  Kellogg  (29  Mich.  420) 59 

Dun  v.    Miller    (75   Mo.   260) 530 

Duncan  v.  Duncan  (N.  C.)   (i  Ired.  466)..  485 
v.  Hall  (N.  C.)  (23  S.  E.  ~ 


Rep.  362). 587,  632 
N.    W.    Rep. 


Rodecker.    (Wis.)    (62 

533)   644,  649 

Dunham  v.   Gannett  (124  Mass.   151    [1878])  606 

v.  Joyce  (Mo.)  (31  S.  W.  Rep.  337)....  662 

v.  Kirkpatrick  (101  Pa.  St.  43) 283 

v.   New  Britain   (Conn.)    (n   Atl.    Rep. 

354   [1888]) 185 

v.  Railroad  Co.  (U.  S.)  (i  Wai.  254)....      8 

Dunlap  v.   Stetson   (4  Mason  349) 407 

Dunlop   v.    Kennedy    (Cal.)    (34   Pac.    Rep. 

92)    603 

Dunniway    v.     Lawson     (Idaho)     (51     Pac. 

Rep.   1032  [1898]) 74 

Dunstan  v.  Jamestown  (72  N.  W.  Rep.  899)  544 
Durant  v.  Branksome,  etc.,  Co.  (C.  A.)  (L. 

R.  2  Ch.  291  [1897]) 218 

Duren  v.   Sinclair  (22  S.  C.  361) 530 

Durfee   v.    Peoria,   etc.,    Ry.    Co.    (111.)    (30 

N.  E.  Rep.  686) 523 

Dutton  v.  Strong  (i  Black  23) 424 

Duyal  v.   Becker  (Md.)    (32  Atl.   Rep.  308)  645 

Dwinel  v.  Barnard.  (28  Me.  554) 105,  233 

v.   Veazie   (44   Me.    167) 233 

Dwyre  v.  Speer  (Tex.)  (27  S.  W.  Rep.  585), 

559,  603,  611 
Dyer   v.    Eldridge    (Ind.)    (36    N.    E.    Rep. 

522)     467,  501 

Dyke  v.  Caldwell  (Ariz.)   (18  Pac.  Rep.  276 

[1888])    75 


E. 

Eagen  v.  42d  St.  R.  Co.  (19  N.  Y.  St.  Rep. 

676)    ........................................  794 

Earl  v.  Dehart  (12  N.  J.  Eq.  280)  .........  1720 

Earl  of  S.  v.  Gt.  N.  R.  Co.  (L.  R.)  (10 

Ch.    Div.    707)  ..............................  101 

Earle  v.   Earle   (i   Spen.  347)  ................     45 

Easterbrook  v.  Erie  R.  Co.  (N.  Y.)  (51 

Barb.    94)  ...................................  *93 

Eastern  R.  R.  Co.  v.  Allen  (135  Mass.  13 

[1883])    .....................................  521 

East  Jersey  Water  Co.  v.  Bigelow  (N.  J.) 

(38  Atl.  Rep.  631   [1897])  ...................  306 

East  Line  R.  Co.  v.  Garrett  (52  Tex.  133)..  735 
East  London  N.  W.  Co.  v.  Leyton  Sewer 

Auth.  (Eng.)  (L.  R.  6  Q.  B.  669  [1871])..  172 
East  Omaha  Ld.  Co.  v.  Jeffries  (40  Fed. 

Rep.  386)  ................................  377,  378 

.  St. 


793 


Easton,  etc.,  R.  Co.  v.  Easton  (133  Pa. 

505)    ........................................ 

E.  Tenn.  I.  &  C.  Co.  v.  Ferguson  (Tenn.) 

(35  S.   W.   Rep.  900)  .......................  504 

-  v.    Walton    (Tenn.    Ch.    App.)     (35    S. 
W.  Rep.  459)  ...............................  687 

East  Tenn.  Teleph.  Co.  v.  Chattanooga  El. 
Ry.  Co.  (Tenn.  Ch.  (2  Amer.  El.  Cas. 
323  [1889])  ..............................  296,  831 

-  v.  Knoxville  St.  R.  Co.  (Tenn.  Ch.  Ct. 
of    Knox    Co.)     (3    Amer.    El.    Cas.    400 
[1890])   ..................................  295,  831 

Eaton  v.  Boston,  C.  &  M.  R.  Co.  (51  N.  H. 
504,  525).....-..........  ....................  353 

-  v.  Perry  (29  Mo.  96)  ....................     42 

Eaves  v.  Estes  (10  Kan.  314)  ................      8 

Eckerson  v.   Village  of  Haverstraw   (39  N. 

Y.   Supp.  635)  ..............................  705 

Eckert  v.  Peters  (N.  J.  Ch.)  (36  Atl.  Rep. 

491)    ........................................  712 

Eddy  v.  Chace  (140  Mass.  471)  ..............  55 

—  v.    Simpson    r?    Cal.    249)  ..............  71.76 

Edens  v.  Miller  (Tad.)   (46  N.  E.  Rep.  526)  555 
Edgar  v.  Stevenson  (70  Cal.  286)  ............     75 

Edgerton  v.  Hoff  (26  Ind.  568)  ..........  166,  167 

-  v.    McMullen    (Kan.)     (39    Pac.    Rep. 
1021)    .......................................  650 

Edsall   v.   Howell    (Sup.)    (33   N.    Y.    Supp. 

892)    ........................................  448 

Edwards  v.   Humphreys   (Tex.)    (36   S.   W. 

Rep-   333)  .............  ......................  516 


Edwards  v.  Ogle  (76  Ind.  302) 421 

v.  Peoria  (66  111.  App.  68) 187 

Edwardsville,  City  of,  v.  Barnsback  (66  111. 

App.  381) 707 

Eels  v.  Amer.  Teleg.  &  Teleph.  Co.  (Sup.) 

(20  N.  Y.  Supp.  600) 814,815 

Egener  v.  New  York,  etc.,  R.  Co.  (Sup.) 

(38  N.  Y.  Sup.  319) 191 

Eggleston  v.  N.  Y.,  etc.,  R.  Co.  (N.  Y.) 

(35  Barb.  162) 741 

Eidemiller  Ice  Co.  v.  Guthrie  (Neb.)  (60 

N.  W.  Rep.  717) 166 

Elder  v.  Lykens  Va.  Coal  Co.  (Pa.  Sup.) 

(27  Atl.  Rep.  545) 217 

Eldert  v.  Long  Island  Electric  Ry.  Co. 

(51  N.  Y.  Supp.  186) 797 

Eldridge  v.  Parish  (Tex.)  (25  S.  W.  Rep. 

49)  516 

Elgin  v.  Beckwith  (111.)  (10  N.  E.  Rep.  558 

[1887])  383,  388,  625 

Ellinger  v.  Missouri  Pac.  Ry.  Co.  (Mo. 

Sup.)  (20  S.  W.  Rep.  800) 379 

Elliot  v.  Pearl  (10  Pet.  412) 620 

Elliott  v.  Fitchburg  R.  Co.  (Mass.)  (10 

Cush.  191) 63,  101,  167 

v.  Gibson  (Ky.)  (29  S.  W.  Rep.  620)...  600 

v.  Gilchrist  (9  Atl.  Rep.  382  [1887]) 550 

Ellis  v.  Duncan  (N.  Y.)  (21  Barb.  230) .275 

v.  Iowa  City  (29  la.  2.29) 188,190 

if.  Lond.  &  S.  W.  Ry.  Co.  (2  Hurlst. 

&  Norm.  424) 318 

v.  Tone  (58  Cal.  289) 71 

Elmore  v.  Davis  (S.  C.)  (26  S.  E.  Rep. 

680)  500 

Elshoff  v.  Deremo  (C.  P.)  (3  Ohio  N.  P. 

273)  324 

Elster  v.  Springfield  (49  Ohio  St.  82,  30 

N.  E.  Rep.  274) 255,262,844 

Ely  v.  Ely  (Mass.)  (6  Gray  439) 47 

v.  Parsons  (Conn.)  (10  Atl.  Rep.  499)..  703 

Embry  v.  Owen  (6  Exch.  353) 71,101,301 

Emerson  v.  Bergin  (Cal.)  (18  Pac.  Rep. 

264  [1888]) 89 

v.  Com.  (108  Pa.  St.  126) 283 

Emery  v.  Fowler  (38  Me.  99,  102) 491,499 

v.  Raleigh,  etc.,  R.  Co.  (102  N.  C.  209)  114 

Emporia  v.  Soden  (25  Kan.  588) 62,275 

Enfield  v.  Day  (7  N.  H.  459) 518 

England  v.  Vandermark  (111.  Sup.)  (35  N. 

E.  Rep.  465) 573 

Engle  v.  Hunt  (Neb.)  (69  N.  W.  Rep.  970)  683 
English  v.  Brennan  (60  N.  Y.  609  [1875]), 


v.  Danville  (99  111.  App.  28 

Engs  v.   Peckham   (n   R.   I.  290 
Eno 


451,  453 
[1897])...  44i 

1877]) 381 

Del  Vecchio   (N.  Y.)  '(4  Duer  53), 

325,  327 

Enterprise  v.  State  (Fla.)  (10  So.  Rep.  740)  546 
Erie  v.  Erie  Canal  Co.  (59  Pa.  St.  174) ....  88 
Ermentraut  v.  Stitzel  (Pa.)  (33  Atl.  Rep. 

103)    649 

Ernsting  v.  Gleason  (Mo.  Sup.)    (39  S.   W. 

Rep.    70) 497,  498 

Eshleman  v.    Malter    (Cal.)    (35   Pac.    Rep. 

860)    597 

v.  Township  of  Martic   (Pa.   Sup.)    (25 

Atl.    Rep.    178) 107,194 

Esmond  v.  Chew  (15  Cal.   137) 75 

Esson    v.    Wather    (Oreg.)    (34    Pac.    Rep. 

756)    85,  86,  223 

Estey  v.  Baker  (50  Me.  325,  525) 598 

Eufaula  v.  Simmons  (86  Ala.  515) 223 

Eulrich   v.    Richter    (37   Wis.   230) 172, 

Eureka,  City  of,  v.  Croghan   (19  Pac.  Rep. 

485     [1889]) 706 

Evans    v.    Blankenshirm    (Ariz.)     (39    Pac. 

Rep.    812) 709 

Evans  v.  Gale  (18  N.  H.  401) 48 

v.    McKinsey    (Ky.)    (6   Litt.   262) 465 

v.   Merriweather   (4  111.  495) 60 

v.   Miller    (58   Miss.    120) ..._ 499 


172,  1720 


Evans'  Adm'r  v.  Temple  (35  Mo.  494) 588 

Evansville  v.   Decker   (84  Ind.  325) 188 

Everett  v.  Hyd.  F.  T.  Co.   (23  Cal.  225)....     87 


Evansville  v.   Decker   (84  Ind.  325) 188 

Everett  v.  Hyd.  F.  T.  Co.   (23  Cal.      .. 

v.  Newton  (N.  C.)  (23  S.  E.  Rep.  961).  528 


TABLE   OF  CASES. 


XXXV11 


Ewart  v.  Belfast  P.  L.  Guard.  (L.  R.  9 
Ir.  172) 256,  259 

Ewing  v.  Colquhoun  (L.  R.  2  App.  Cas. 
839)  • 83,  109 


F. 

Fabian  v.  Collins   (3  Mont.  215) 75 

Fahey  v.  Marsh  (40  Mich.  236  [1879]) 500 

Fairfield   v.    Williams   (4   Mass.   427) 707 

Fallbrook    Irr.    Dist.    v.    Bradley    (17    Sup. 

Ct.   Rep.   16) 74 

Falls    Village    W.-p.    Co.    v.    Tibbetts    (31 

Conn.   165) 578 

Faloon  v.   Simshauer  (111.)    (22  N.   E.   Rep. 

835)    514 

Fannin   v.    Bellamy   (Ky.)    (5   Bush  663) 592 

Fanning  v.   Osborne  (192  N.  Y.  441) 708,797 

Farbell  v.   Bowman   (103  Mass.  341   [1869]), 

588,  590 

Parish  v.   Coon   (40   Cal.   33) 518 

Farkas  v.  Towns   (Ga.)    (29  S.   E.   Rep.  700 

[1897])    193 

Farmer  v.  Ukiah  W.   Co.   (56  Cal.   11) 77 

Farmers'    Coop.    Mfg.    Co.    v.    Albemarle, 

etc.,  R.  Co.   (N.  C.)   (23  S.  E.  Rep.  43)..  240 
Farmers'    High   Line   Canal   v.    Southworth 

(Colo.)   (4  Law  Rep.  Ann.  767  [1889]) 75 

Farmers'    L.    &    T.    Co.    v.    Galesburg    (133 

U.    S.    156) 148 

Farr  v.  Swan  (2  Pa.  245) 628 

Farrand   v.    Marshall    (21    Barb.   409) 321,323 

Farwell    v.    Sturgiss    W.    Co.    (S.    D.)    (73 

N.   W.   Rep.   916   [1898]) 256 

Fay  v.  Prentice  (Eng.)   (i  C.  B.  838) 181 

Fenley  v.   Flowers   (Tex.)    (23  S.    W.    Rep. 

749)    '• 57i 

Ferguson   v.    Crick    (Ky.)    (23    S.    W.    Rep. 

668) 494 

v.   Firmenich   Mfg.    Co.    (77  Iowa  576), 

214,  223 

Ferrea  v.   Knipe  (28  Cal.  340). 60,71,81 

Ferris  v.  Wellborn   (64  Miss.   29) 1720 

Field  v.  Barling  (111.)   (37  N.  E.  Rep.  850), 

714,  718 

—  v.   Mark   (Mo.)    (28  S.  W.   Rep.   1004)..  715 
Finegan    v.    Eckerson    (Sup.)     (52    N.    Y. 

Supp.    933    [1898]) 329 

•).    Funk    (Kan.)    (12    Pac.    Rep.    15 

•• 495 

)) 194 

3o.  (5  Pa.  Super. 


Finley 


v.   Hershey   (41   la.  3* 
Finnegan  v.  Penn.  Trust 


530 


124  [1897]) 

Fin   v.    Wis.    Land  .Co.    (Wis.)    (40   N.    W. 

Rep.  209)    521 

Fird  v.  Harris  (Ga.)   (2  S.  E.  Rep.  144)....  650 
Firmstone   v.    Sparter    (Pa.    Sup.)    (25   Atl. 

Rep.  41)    448 

Fisher  v.   Smith   (9  Gray  441    [1857]) 453 

Fisk  v.   Hartford   (69  Conn.  375) 220 

v.  Havana    (88    111.    208) 704 

Fitch  v.  Seymour  W.  Co.   (Ind.)   (37  N.  E. 

Rep.   982) 148 

Fitzgerald  v.   Britt   (43   Iowa  498) 584 

v.    Firbank    (C.    A.)    (L.    R.    2    Ch.    96 

[1897])    204 

• v.  Libby  (Mass.)  (22  Reptr.  613  [1886]), 

v.  Mo.  Pac.  R.  Co.   (35  Fed.  Rep.  812)'  732 

Fitzpatrick  v.  Boston  &  M.  R.  Co.  (84  Me. 

Flannery  v.  Hightower  (Ga!)  '(25  *S.'  'E.'  Rep. 

370    521 

Flaten  v.  Moorhead  (Minn.)  (59  N.  Y.  Rep. 

1 144) 755 

Flax  Pond  W.  Co.  v.  Lynn  (Mass.)  (16  N. 

E.   Rep.   742   [1888]) 444 

Fleming   v.    Wilmington,    etc.,    R.    Co.    (N. 

C.)   (20  S.  E.  Rep.  714) 114 

Fletcher  v.    Phelps   (28  Vt.   257) 421 

v.  Rylands    (L.    R.  3   H.    L.    Cas.   330), 

267,  292 
v.  Smith  (L.   R.  7  Exch.  305) 105 


Fletcher    v.    Thunder    Bay    R.    B.    Co.    (51 

Mich.  277  [1883]) 431 

Flint  v.  Long  (Wash.)  (41  Pac.  Rep.  49)..  522 
Floyd  v.  Boulder  F.  &  M.  Co.  (Mont.)  (28 

Pac.  Rep.  450) 75 

v.  Rome  St.  R.  Co.  (77  Ga.  614) 784 

Foley  v.  McCarthy  (Mass.)  (32  N.  E.  Rep. 

669)   . . . 451,  576,  577 

—  v.  Wyeth  (2  Allen  131) 327 

Folk  v.  Varn'  (9  Rich.  Eq.  303) 46 

Follendore  v.  Thomas  (Ga.)  (20  S.  E.  Rep. 

329) 683 

Foot  v.  New  Haven,  etc.,  Co.  (23  Conn. 

214)  741 

Foran  v.  Mclntyre  (Pa.  Com.  PI.)  (26 

Pittsb.  Leg.  J.  N.  S.  468) 843 

Forbell  v.  New  York  (56  N.  Y.  Supp.  790 


[1899]) 


•252,  255 


Forbish  v.  Goodwin   (25  N.  H.  425) 

Pa.  St.  31) 283 

344) 8 

v.  Harris   (Ga.)    (22  S.   E.   Rep.  452)...  714 


Ford  v.  Buchanan  (in 
•v.  Cobb    (20    N.    Y. 


v.   Schlosser   (Com.   PI.   N.   Y.)    (34  N. 

Y.  Supp.  12) 336 

v.  Unity  Ch.  Soc.  (Mo.)  (25"  S.  W. 

Rep.  394)  • 559 

v.  Whitlock  (27  Vt.  265  [1855]) 105 

v.  Wilson  (35  Miss.  490) 530 

Fordyce  v.  Russell  (Ark.)  (27  S.  W.  Rep. 

82)  52 

Foreman  v.  Presbyterian  Assn.  (Md.)  (30 

Atl.  Rep.  1114) 448 

Forest  v.  Jackson  (65  N.  H.  357) 528 

Forest  River  Lead  Co.  v.  Salem  (Mass.) 

(42  N.  E.  Rep.  802) 493 

Forrest  Mill  Co.  v.  Cedar  Falls  M.  Co. 

(la.)  (72  N.  W.  Rep.  1076) 75 

Forsythe  v.  Small  (U.  S.)  (7  Biss.  201,  205 

[1876])  :42i 

Fort  v.  New  Haven,  etc.,  Co.  (23  Conn. 

214)  740 

Fortman  v.  Gupper  (14  Ohio  St.  558) 8 

Forty  Fort  v.  Forty  Fort  Water  Co.  (Pa.) 

(9  Kulp  241  [1897]) 845 

Fosdick  v.  Schall  (99  U.  S.  235,  251) 8 

Foster  v.  Foss  (77  Me.  280) 603 

v.  Joliet  (27  Fed.  Rep.  899) 148 

Four-mile  L.  &  C.  C.  Co.  v.  Gibson  (Ky.) 

(49  S.  W.,Rep,  945  [1899])- ....... : . ...  .^. ...  501 


J45  [1899]) 
Fowler  v.   Veefland    (N.  J.)    (14  Atl.    Rep. 

116- [1888])    ......:..... .  422 

Fox  v.    Western   Pac.    R.    Co.    (31   Cal.   538 

[1867] )    755 

Franceour  v.   Newhouse  (U.   S.)   (14  Sawy. 

600)    534 

Francis   v.    Newark    (N.   J.)    (33   Atl.    Rep. 

853)    617 

Frank  v.  Hicks  (Wyo.)  (35  Pac.  Rep.  475)  77 
Frankfort,  etc.,  T.  Co.  v.  Phila.,  etc.,  R. 

Co.    (54    Pa.    St.    345) 745 

Frankland  v.   Moulton   (5  Wis.   i) 8 

Franklin    v.    Woolridge    (Ky.)    (45    S.    W. 

Rep.    98    [1898]) 629 

Franklin    Tpk.     Co.    v.     Crockett     (Tenn.) 

(2  Sneed  263) 303 

Franklin  Wh.  v.  Portland  (67  Me.  46)....  242 
Frazier  v.  Brown  (12  Ohio  St.  294).  .262,  271,  275 
Fred  v.  Kansas  City  Cable  Ry.  Co.  (2  Mo. 

App.   Reptr.   1173) 7gg 

Frederick  v.  Devol  (15  Ind.  357) 8 

Freedman  v.   Conner  (Tex.   Civ.  App.)    (46 

S.    W.    Rep.    47) 530 

Freeholders  v.   Redbank  Tpk.   Co.    (N.  J.) 

(3   C.   E.   Greene  91) 5 

Freeman     v.     Bellegrade     (Cal.)     (41     Pac. 

Rep.  289) 406,  407 

v.    Hairwig    (Iowa)     (51    N.    W.    Rep. 

169)    338 

v.    Leighton    (Me.)    (38    Atl.    Rep.    542 

[1897])    407 

Fremont,  etc.,  R.  Co.  v.  Crum  (30  Neb.  70)  320 
Fremont  R.  Co.  v.  Marley  (25  Neb.  138 

[1889])     178 

French  v.  Camp  (18  Me.  433) 168,  240 

v.   Richardson   (5  Cush.  450   [1850])....  469 


XXXVlil 


TABLE   OF  CASES. 


Frey  v.  Louden  (70  Cal.  550) 75 

Frick  v.   Penna.    R.    Co.    (157  Pa.    St.   622), 

112,  114,  119 
Fritz  -v.  Tompkins  (Sup.)   (41  N.  Y.  Supp. 

985)     645,  715 

Frost  v  Spaulding   (19  Pick.   445    [1837])...  597 
Fry  v.   Stowers   (Va.)    (22  S.  E.   Rep.  500), 

625,  626 
Fryatt  v.  Sullivan  Co.  (N.  Y.)  (5  Hill    116)      8 

Frye  v.  Moor   (53  Me.  583) 167,274 

Fudicker  v.  East  Riverside  Irr.  Dist.  (Cal.) 

(41   Pac.   Rep.   1024) 553 

Fulcher  v.  White  (Tex.)  (48  S.  W.  Rep.  881 

[1899])    620 

Fullam  v.   Foster   (68  Vt.   59o).  .526,  574,  583,  633 

Fuller  v.   Daniels    (63   N.    H.   395) 84 

v.    Dauphin    (124  111.    542    [1888]), 

410,  431,  521,  598 

v.    Shedd    (161    111.    462) 406,421,424 

v.    Swan    R.    P.    Min.    Co.    (Colo.)    (19 

Pac.   Rep.  836  [1889]) 101 

v.    Weaver    (Pa.    Sup.)    (34    Atl.    Rep. 

634)    542 

Fulton  v.  Mehrenfeld  (8  Ohio  St.  440) 701 

Funk  v.   Haldeman    (53   Pa.    St.   243) 283 

Furner  v.  Seabury  (N.  Y.  'App.)  (31  N.  E. 

Rep.    1004) no 

Fuselier  v.  Great  So.  Teleg.  &  Teleph.  Co. 

(24  So.   Rep.  274) 814 


G. 

Gaffney  v.  City  of  S.  F.  (72  Cal.  146  [1887])  560 
Gage  v.  Smith  (111.)  (31  N.  E.  Rep.  430)..  523 
Galesburg  v.  Galesburg  W.  Co.  (34  Fed. 

Rep.  675) 148 

Gallagher  v.  Kingston  W.  Co.  (N.  Y.)  (25 

App.  Div.  82  [1898]) 104,  138 

v.  Rahm  (Tex.)  (31  S.  W.  Rep.  327)..  559 

v.  Riley  (Tenn.)  (35  N.  W.  Rep.  451)..  493 

Galland  v.  Jackman  (26  Cal.  85) 47 

Galveston,  H.  &  S.  A.  Ry.  Co.  v.  Haas 

(Tex.)  (37  S.  W.  Rep.  167) 223 

Galveston,  etc.,  Ry.  Co.  v.  Parr  (Tex.)  (28 

S.  W.  Rep.  264) 190,  192 

Pfeuffer  (56  Tex.  66  [1881]) 353 

742 


v.  Pfeuffer  (56  Tex.  66  [1881]) 

v.   Spinks   (Tex.)    (36  S.   W.    Rep.   780) 

Gamble    v.    Hamilton    (Fla.)    (12    So.    Rep. 

229)    516 

Gannon  v.  Hargadon  (10  Allen  106) 177 

Garcia  v.   Illig   (Tex.)   (37  S.   W.  Rep.  471)  516 
Garden   City  S.   Co.  v.   Miller  (111.)    (41   N. 

E.  Rep.  753) 546 

Gardiner  v.   Camden   (86  Me.  376) 119 

Gardner  v.  Gardner   (N.  Y.)   (22  Wend.  526)    42 

v.  Holland  (S.  C.)   (19  S.  E.  Rep.  997)  516 

v.   Masters   (N.    C.)    (3  Jones   Eq.  462)  473 

v.  Newburg  (N.  Y.)  (2  Johns.  Ch.  162)  143 

v.   Webster   (N.   H.)    (15  Atl.   Rep.    144 

[1888])    712 

Garitee  v.  Baltimore  (53  Md.  422) 242 

Garrad  v.   Silver  Pk.   Mines   (82  Fed.   Rep. 


578) 


Garrell   v.    Greensboro    W.-supply    Co.    (N. 

C.)    (32  S.   E.   Rep.  720  [1899]) 

Garstang  v.   City  of  Davenport   (Iowa)    (50 


573 

148 


N.    W.    Rep.    876) 

Garvin  v.   Dean   (115  Mass.   577) 603 

Garwood  v.  N.  Y.  Cent.  R.  Co.   (83  N.  Y. 

40O)      63,   IOI ,   102 

Gary  v.  Woodham  (Ala.)   (15  So.  Rep.  840)  530 
Gas  Lt.  Co.  v.  Indus.  Wks.  (28  Mich.  181), 

401,  431 
Gassert   v.    Noyes    (Mont.)    (44   Pac.    Rep. 

959)     •• 75.76 

Gates  v.  Lewis  (7  Vt.  511) 545 

Gates  v.  N.  Pac.  R.  Co.  (64  Wis.  64) 240 

Gatewood  v.  Cooper  (Ky.)   (38  S.  W.  Rep. 

690)    677 

Gavigan    v.    Atl.    Ref.    Co.    (Pa.)    (40   Atl. 

Rep.  834  [1898]) 207,223,265 

Gavit  v.   Chambers    (3   Ohio  496) 401 

Gayhart  v.    Cornett   (Ky.)    (42   S.   W.    Rep. 

730     [1897]) 498 


Gaylord  v.  King  (142  Mass.  495) 319 

Gayner  v.  Hall  (60  Mo.  271) 520 

Gd.  June.  R.  Co.  v.  Middlesex  (Mass.) 

(14  Gray  553) 752 

Gd.  June.  C.  Co.  v.  Shugar  (L.  R.  6  Ch. 

487)  171,  275 

Gedge,  etc.,  v.  Commonwealth  (Ky.)  (9 

Bush  61) 706 

Gehlen  v.  Knorr  (la.)  (70  N.  W.  Rep.  757)  83 
Geneva,  Trustees  oi,.v.  Brush  E.  Co.  (N. 

Y.)  (50  Hun  581  [1888]) 826 

Gentile  v.  Crossan  (N.  M.)  (38  Pac.  Rep. 

247)  553 

Gentleman  v.  Spule  (83  Am.  Dec.  264).  .703,  704 

Gentry  v.  Hamilton  (3  Ired.  Eq.  376) 592 

George  v.  Bates  (Va.)  (20  S.  E.  Rep.  828). 5540 
Gerke  v.  Lucas  (La.)  (60  N.  W.  Rep.  538)  631 
Gerrard  v.  Silver  Peak  Mines  (U.  S.  C.  C.) 

(82  Fed.  Rep.  578  [1897]) 581 

Gerrish  v.  Newmarket  Mfg.  Co.  (30  N.  H. 

478)  84 

v.  Union  Wharf  Co.  (26  Me.  395)...-.  374 

Gibbs  v.  Larrabee  (37  Me.  506) 706 

—  v.  Senft  (12  Cush.  393) 45 

Gibson  v;  Kelly;  (Mont.)  (39  Pac.  Rep.  517)  414 

v.  Puchta  (33  Cal.  310) 81 

Giddings  v.  Hadaway  (28  Vt.  342).. 


Gifford  v.  Yarborough  (5  Bing.  163) 372,376 

Gildersleeve  v.  Hammond  (Mich.)  (67  N. 

W.  Rep.  519) 330 

v.  N.  Y.,  N.  H.  &  H.  R.  Co.  (82  Fed. 

Rep.  763  [1897]) 121 

Giles  v.  Simonds  (Mass.)  (15  Gray  441) 667 

Gilzinger  v.  Saugerties  W.  Co.  (Sup.)  (21 

N.  Y.  Supp.  121) 54,55,104 

Gillespie  v.  Forest  (N.  Y.)  (18  Hun  no)..  112 
Gillespie  Tool  Co.  v.  Wilson  (123  Pa.  St. 

19)  284 

Gillett  v.  Johnson  (30  Conn.  180) 1720 

Gillis  v.  Chase  (N.  H.)  (31  Atl.  Rep.  18), 

Gill  v.  Weston  (no  Pa.  St.  313) 283 

Gillmore  v.  Driscoll  (122  Mass.  199) 326 

Ginocchio  v.  Amador  C.  &  M.  Co.  (67  Cal. 

493)  77 

Girard  College,  etc.,  R.  Co.  v.  Thirteenth, 

etc.,  R.  Co.  (Penn.)  (7  Phila.  620) 754 

Gladfelter  v.  Walker  (40  Md.  i) 223 

Glassell  v.  Verdugo  (Cal.)  (41  Pac.  Rep. 

403)     58,  82 

Gleason  v.  Tuttle   (46  Me.  288  [1858]) 89 

Glen   v.   Jeffrey    (la.)    (39   N.    W.    Rep.    160 

[1880])    410 

Click  v.  Weatherwax  (Wash.)  (45  Pac.  Rep. 

156)    121 

Gloss    v.    Furman    (164    111.    584,    45    N.    E. 

Rep.  1019,  66  111.  App.  127) 455 

Glover  v.  Shields  (32  Barb.  374,  380) 598,614 

Gniadck    v.    Northwestern    Imp.    &    Boom 

Co.   (75  N.  W.  Rep.  894) 85 

Godfrey  v.  Altoona  (12  111.  29) 379 

Goff  v.  Cole  (Miss.)  (13  So.  Rep.  870) 521 

Gold  v.  Carter  (Tenn.)   (9  Humph.  369) 241 

Golden  Canal  Co.  v.  Bright  (8  Colo.  144). 73,  75 
Goldsborough  v.  Pidduck  (Iowa)  (54  N. 

W.    Rep.    431) 550,624 

Goldsmid    v.    Tunbridge    Comm'rs    (i'  Eq. 

161)    2ir 

Golterman   v.    Schiermeier    (Mo.    Sup.)    (28 

S.   W.   Supp.   616) so< 

Gonzales  v.  Leon  (31  Cal.  98  [1866]) 59" 

Good  v.   Altoona   (Pa.   Sup.)    (29  Atl.    Rep. 

741)     204,  211 

Goodale  v.   Tuttle   (29   N.   Y.  466) 275 

Goodin  v.   Cine.,  etc.,  C.   Co.   (18  Ohio  St. 

169)    i 735 

Goodlittle  v.  Alker  (i  Burr.  133) 166 

Goodman  v.   Myrick   (5   Oregon  65) 586 

Goodson   v.    Brothers    (Ala.)    (20    So.    Rep. 

443)    521,  528,  530 

Goodwin  v.  McCabe   (75  Cal.   584  [1887]), 

522,  526,  617 
Gordon  v.  Trimmier   (Ga.)    (18  S.   E.   Rep. 

404)    549 

Gorham  v.  Cross  (125  Mass.  232) 272 


TABLE    OF  CASES. 


XXXIX 


Gorham  v.  Eastchester  El.  Co.  (Sup.)  (30 
N.  Y.  Supp.  125)  ..........................  448 

Gould  v.  Eastern  R.  Co.  (142  Mass.  85 
[1886])  ..................................  453,  454 

-  v.   Eaton    (Cal.)    (49   Pac.    Rep.   577), 

61,  105,  219,  252 

-  v.   McKenna   (86  Pa.    St.   297)  ..........  181 

-  v.    Stafford    (77    Cal.    66)..  51,  52,  71,  in,  214 
Gouverneur  v.  National  Ice  Co.  (134  N.  Y. 

355)   .....................................  407,  421 

Governor  v.  Bowley  (17  O.  B.  358)  ..........       5 

0   Mi 


Gower   v.    Quinlan    (40 

Grace  M.  E.  Church  v.  Dobbins  (Pa.  Sup.) 


ich.   572)  ..........   1:30 

obbins  (Pa.  Sup.) 
(25    Atl.    Rep.    1120)  ....................  183,336 


25       t.       ep.    1120  ....................  183,33 

Grady  v.   Walsner   (46  Ala.   381)  ............  302 

Graham   v.    Botner    (Ky.)    (37   S.    W.    Rep. 
583)    ........................................  555 

-  v.  Dewees  (Tex.  Sup.)   (20  S.  W.  Rep. 
127)    ........................................  584 

Grandin  v.  Hernandez  (29  Hun  399,  203)  ----  572 

Grandona  v.    Loodal    (70   Cal.    161)  ......  314,316 

Grand  Rapids  v.  Power  (Mich.)  (50  N. 

W.    Rep.    661)  ..............................  381 

Grand  Rapids  &  I.  R.  Co.  v.  Butler  (15 

Sup.  Ct.  991)  ...............................  406 

Grange  v.  Pately  Bridge  G.  &  W.  Co. 

(14   Gas   J.    309)  ............................  305 

Grant  v.  Davenport  (36  la.  396)  ............  147 

-  v.  Grant  (5  C.  P.  727)  ..................  556 

-  v.  McDonogh  (7  La.  Ann.  477)  ........  131 

-  v.   Moon    (Mo.   Sup.)    (30   S.   W.   Rep. 
328)    ........................................  449 

Gratz  v.  Hoover  (16  Pa.  St.  232  [1851])  ____  576 
Graves  v.  Kansas  City,  P.  &  G.  R.  Co.  (69 
Mo.    App.    574)  ............................  138 

-  v.    Mattison    (Vt.)     (10    Atl.    Rep.    674 
[1887])    .....................................  593 

-  v.   Mattison   (Vt.)    (38  Atl.   Rep.  498), 

328,  573 

-  v.  Shattuck  (35  N.  H.  257)  ......  .......  319 

-  v.  Texas,  etc.,  R.  Co.  (Tex.)  (31  S.  W. 
Rep.  87)  ....................................  631 

Gray  v.   Harris  (107  Mass.  492)  ............  85,90 

-  v.  McWilliams  (98  Cal.  157)  ............  136 

-  v.  Saco  W.-p.   Co.   (85  Me.  526)  ........     75 

Graydon  v.  Kurd  (C.  C.  A.)  (55  Fed.  Rep. 

724)    ........................................  528 

Graza  v.  <Brown  (Tex.)  (11  S.  W.  Rep. 

920)    ........................................  504 

Gt.  Northern  Ry.  Co.  v.  St.  Paul  (Minn.) 

(63   N.   W.    Rep.   96)  .......................  709 

Gt.  Western  R.  v.  Swindon  R.  Co.  (52  L. 

J.  R.  Ch.  306)  (s.c.,  53  L.  J.  R.  Ch.  1075)  5 
Greeley  v.  Weaver  (Me.)  (13  Atl.  Rep.  575 

[1888])     .................................  542,578 

Green  r.  Canaan  (29  Conn.  157)  ............  704 

-  -  v.  Convon  (29  Conn.   157)  ...............  706 

-  v.   Doane  (15  Cal.  304)  ..................  614 

-  v.   Gilbert   (60  N.    H.    144)  ..............  222 

-  -  v.   Oakes  (17  111.  249)  ...................  703 

-  -v.    Richmond    (Mass.)    (29   N.   E.    Rep. 
770)    ........................................  717 

Green  Bay  Canal   Co.  v.   Kaukauna  W.   P. 
Co.  (61  N.  W.  Rep.  1121,  70  Wis.  635), 

83,  107,  241 
Greencastle  v.   Hazlett   (23  Ind.    186)  .......  267 

Greene  v.  Minnemacher  (36  Wis.  50)  ____  201,208 

-  v.    Smith    (57   Vt.    268)  ..................  499 

Greenleaf  v.  Brooklyn  E.  R.  Co.   (8  N.  Y. 

Supp.  30)  ...................................  573 

Greenwell  v.  Low  Beechburn  C.  Co.  (Eng.) 

„.         i 
Greenwood 


(2  Q.  B.  165  [1897]). 

ureenwood  v.  Freight  Co.   (105  U.  S.   13)..  765 
Greer  v.  Powell  (la.)   (56  N.  W.  Rep.  440), 

502,  605 

v.  Squire  (V.'ash.)   (37  Pac.  Rep.  545)..  577 

v.  Van  Meter  (N.  J.  Ch.)  (33  Atl.  Rep. 

794)    '. 307 

Gregg  v.  Hill  (Tex.)  (17  S.  W.  Rep.  838)..  584 

Gregory  v.   Knight   (50  Mich.) 352 

Gress  Lumb.  Co.  v.  Coody  (Ga.)  (21  S.  E. 

Rep.    217) 5540 

Grey  v.  Paterson  (N.  J.  Ch.)  (42  Atl.  Rep. 

7.49    [1899]) 201,  205,  207,  213,  215,  219 

Uridley  v.  Wynant  (23  How.  503) 45 


Grief  v.  Norfolk  &  W.  R.  Co.  (Va.)  (30  S. 

E.  Rep.  438  [1898]) 612, 

Grier  v.  Puterbaugh  (108  111.  602  [1884]).... 

Griffin  v.  Bixby  (12  N.  H.  454) 

v.  Johnson  (111.  Sup.)  (44  N.  E.  Rep. 

206)  

Griffith  v.  Schwenderman  (27  Mo.  412) 

Griffiths  v.  Morrison  (106  N.  Y.  165).... 336, 
Grigsby  v.  Combs  (Ky.)  (21  S.  W.  Rep.  37) 

Groat  v.  Moak  (26  Hun  380) 

Grogan  v.  Burling  Mills  (124  Mass.  390).. 
Groner  v.  Foster  (Va.)  (27  S.  E.  Rep.  493) 

381,  382, 

Grube  v.  Wells  (34  Iowa  148) 

Guardhous  v.  Blackburn  (L.  R.  i  P.  &  D. 

109) 

Gugliemi  v.  Geismar  (La.)  (14  So.  Rep. 

501)  * 

Guille  v.  Swan  (19  Johns.  N.  Y.  381) 351, 

Guinn  v.  Spillman  (Kan.)  (35  Pac.  Rep.  13) 
Gulf,  C.  &  S.  F.  Ry.  Co.  v.  Calhoun 

(Tex.  Civ.  App)  (24  S.  W.  Rep.  362).... 
Gulf,  etc.,  Ry.  Co.  v.  Southwestern  Tel.  & 

Teleph.  Co.  (Tex.)  (45  S.  W.  Rep.  151).. 
Gunn  v.  Harriss  (Ga.)  (14  S.  E.  Rep.  593) 

Gunther  v.  Draubauer  (38  Atl.  Rep.  33) 

Gwynn  v.  Swartz  (40  Alb.  L.  J.  374  [1889]), 

494 
G.  R.  &  I.  R.  R.  Co.  v.  Heisel  (38  Mich.' 

62)    


§§ 

621 
554 
313 

431 
521 
676 
620 
82 
545 


5i8 
558 

583 
352 
52i 


811 
626 
717 

497 

446 


H. 

Hackney  v.  State  (8  Ind.  494) 303 

Hagan  v.  Campbell  (Ala.)   (8  Port.  9) 53 

Hagerty  v.   Lee   (N.   J.)    (15  Atl.    Rep.   399 

[1888])    307 

Hagey  v.    Detweiler   (35    Pa.    St.   409) 518 

Haggard    v.    Martin    (Tex.    Civ.    App.)    (34 

5  W.  Rep.  660) .......:?  516 

Hague  v.   Nephi   Irr.   Co.    (Utah)    (52  Pac. 

Rep.  765) 105 

v.  Wheeler  (157  Pa.  St.  524,  27  Atl. 

Rep.  714) 282- 

Hahn  v.  Dawson  (Mo.  Sup.)  (36  S.  W. 

Rep.  233) .378,  390 

Haight  v.  Keokuk  (4  la.  199) 235 

—  v.  Littlefield  (Sup.)   (24  N.  Y.  S.  1097)  714 

Haines  v.  Hall  (17  Ore.   165) 233,243. 

v.   Welch   (14  Ore.  319) 243 

Halbert  v.    Brown    (Tex.)    (31    S.   W.    Rep. 

535)  "523. 

v.  Mayesville,  etc.,  R.  Co.  (Ky.)  (33 

S.  W.  Rep.  1121) 535 

Haldeman  v.  Bruckhart  (45  Pa.  St.  514) 253 

Hale* P.  McLea  (52  Cal.  581,  53  Cal.  578). .71,  259 

Hall  v.  Eaton  (139  Mass.  217  [1885]) 586,587 

v.  Kleeman  (C.  P.)  (4  Ohio  N.  P.  -201, 

6  Ohio    Dec.   323) 324 

v.  McLeod  (Ky.)  (2  Mete.  98) 703 

v.  Rood  (40  Mich.  46  [1879])  (48  Mich. 

368,  65  Mich.  84) 336 

Halley  v.  Fontain  (Tex.)  (33  S.  W.  Rep. 

260)  546 

Halliday  v.  Hess  (111.  Sup.)  (35  N.  E.  Rep. 

380)  546,  551 

Halsey  v.  McCormick  (13  N.  Y.  296).... 373,  407 

v.  McCormick  (18  N.  Y.  150) 382 

Halstead  v.  Mullen  (93  N.  C.  252  [1885])..  625 

Ham  v.  Salem  (100  Mass.  350) 167,169 

Hamilton  v.  Vickburg,  etc.,  R.  Co.  (34  La. 

Ann.  970) 116 

—  v.  White  (5  N.  Y.  9) 648 

Hamlin  v.   Pairpoint  (141   Mass.  51) 446 

Hamm  v.  San  Francisco  (17  Fed.  Rep.  119)  606 
Hammann  v.  Jordan   (N.   Y.  App.)    (29  N. 

E.  Rep.  294) 343 

Hammond  v.  McLachlan  (N.  Y.)  (i  Sandf. 

323)  448 

v.  Rose  (u  Colo.  524)  (19  Pac.  Rep. 

466  [1889])  74,75 

Hanbury  v.  Woodland  Lumber  Co.  (Ga.) 

(26  S.'E.  Rep.  477) 703 

Hand  v.  Brookline  (126  Mass.  324) 145 


xl 


TABLE   OF  CASES. 


Hanford  v.  McNair  (N.  Y.)  (9  Wend.  54)  45 

v.  St.  Paul,  etc.,  R.  Co.  (43  Minn.  104)  52 

Hanlin  v.  Chicago  &  N.  W.  Ry.  Co.  (61 

Wis.  515  [1884]) 120 

Hanlon  v.  Hobson  (Colo.)  (51  Pac.  Rep. 

433  [1897]) 406 

v.  Union  Pac.  Ry.  Co.  (Neb.)  (58  N. 

W.  Rep.  580) 554,  623 

Hannibal  Mfg.  Co.  v.  Shaubacher  (57  Mo. 

582  [1874]) 449 

Hanover  W.  Co.  v.  Ashland  I.  Co.  (84  Pa. 

St.  279) 194 

Hansom  v.  Campbell  (20  Md.  223) 454 

Hanson  v.  McCue  (42  Cal.  303) 257 

—  v.   Red   Rock  Tp.    (S.    D.)    (57   N.   W. 

Rep.  n) 579,  580 

Haps  v.  Hewitt  (97  111.  498) 378 

Hardin  v.  Jordan  (n  Sup.  Ct.  Rep.  808, 

838)  410,  421 

Harding  v.  Jasper  (14  Cal.  643) 703 

v.  Stamford  W.  Co.  (41  Conn.  87) 62 

v.  Whitney  (40  Ind.  379) 135 

v.  Wright  (Mo.  Sup.)  (24  S.  W.  Rep. 

211)  587 

Hardy  v.  Alabama  &  V.  Ry.  (Miss.)  (19 

So.  Rep.  661) 685 

v.  Memphis  (Tenn.)  (10  Heisk.  127)..  708 

v.  Waltham  (Mass.)  (3  Met.  163) 142 

Hargiss  -v.  Kansas  City,  etc.,  R.  Co.  (100 

Mo.  210) 740 

Hargrave  v.  Cook  (Cal.)  (41  Pac.  Rep.  18)  107 

Hargraves  v.  Kimberly  (26  W.  Va.  787) 105 

Harkey  v.  Cain  (Tex.)  (6  S.  W.  Rep.  637)  8 
Harlow  v.  Marquette,  etc.,  R.  Co.  (31  Mich. 

346,  41  Mich.  336) 741 

Harms  v.  Kranz  (111.)  (47  N.  E.  Rep.  746).  521 
Harper  v.  Morse  (Mo.)  (21  S.  W.  Rep. 

517)  528 

Harrigan  v.  Conn.  R.  L.  Co.  (129  Mass. 

580)  243 

Harrington  v.  McCarthy  (Mass.)  (48  N.  E. 

Rep.  1287  [1891]) 336 

Harris  v.  Broiles  (Tex.)  (22  S.  W.  Rep. 

421)  555 

v  jr>ozier  (72  til.  App.  542) 343 

v.  Elliot  (10  Pet.  (U.  S.)  25) 708 

v.  Johnson  (Ky.)  (44  S.  W.  Rep.  948 

1898])  546 

Harrison  v.  Caswell  -(Sup.)  (45  N.  Y.  Supp. 

560)  516 

v.  Stipes  (Neb.)  (51  N.  W.  Rep.  976 

[1892])  410 

Harrison  County  v.  Seal  (Miss.)  (5  So. 

Rep.  622) 703 

Hart  v.  Evans  (8  Pa.  St.  13) in 

• v.  Jamaica  Pond  Aq.  Co.  (133  Mass. 

488)  255 

Hartford  v.  Board  (Conn.)  (36  Atl.  Rep. 

786)  149 

Hartigan  v.  Hoffman  (Wash.)  (47  Pac. 

Rep.  217) 546 

Hartman  v.  Pittsburg  I.  P.  Co.  (Pa.  Sup.) 

(28  Atl.  Rep.  145) 137 

Hartsell  v.  Coleman  (N.  C.)  (21  S.  E.  Rep. 

392)  631 

Hartshorn  v.  Chaddock  (Sup.  Ct.)  (40  N. 

Y.  St.  Rep.  953) 90,137,194 

Hartung  v.  Witte  (59  Wis.-  285) 499 

Hartwell  v.  Camman  (10  N.  J.  Eq.  128) 283 

v.  Mutual  L.  I.  Co.  (50  Hun  497  [1888])  75 

Harvey  v.  Walters  (L.  R.  8  C.  P.  Cas.  162 

[1872])  676 

Hass  v.  Plantz  (56  Wis.  105) 499 

Hastings  v.  McDonough  (Sup.)  (43  N.  Y. 

Supp.  628) 445,  599 

Hatfield  v.  Workman  (W.  Va.)  (14  S.  E. 

Rep.  153) 498 

Hathaway  v.  Evans  (113  Mass.  264) 623 

v.  Spooner  (9  Pick.  23  [1829]) 617 

Hathorn  v.  Kelly  (29  Atl.  Rep.  1108,  86 

Me.  487) 674 

v.  Stinson  (i  Fairf.  238) 421 

Haugen  v.  Albina  L.  &  W.  Co.  (Oreg.) 

(28  Pac.  Rep.  244) 149 

Haump's  App.  (120  Pa.  St.  211) 62 


Haupt  v.  Haupt   (15  Atl.   Rep.  700  [1888])  625 

Havan  v.   Emery   (33  N.   H.  66) 8 

Hayden  v.  Brown  (Ore.)   (53  Pac.  Rep.  490 

1898])    485 

v.  Long  (8  Oreg.  244) .  .61,  ?i 

Hayes  v.   Jones   (27  Ohio   St.   218) 789 

v.   Richardson   (Md.)    (i   Gill   &  J.   366)  741 

—  v.  Waldron   (44  N.   H.  580).  .58,  207,  208,  222 
Haynes  v.  Boardman  (119  Mass.  414  [1876])  687 

—  v.   Burlington   (38  Vt.   350) 117 

v.  Thomas  (7  Ind.   38) 705 

Hazeltine  v.   Case  (46  Wis.  391) 82,208 

Hazelton    v.    Webster    (Sup.)     (46    N.    Y. 

Supp.    922    [1897]) 166 

Hazen   v.    Boston,   etc.,   R.    Co.    (Mass.)    (2 

Gray   574) 752 

Heacock  v.   State   (N.   Y.)    (n   N.   E.   Rep. 

638   [1887]) 83,272 

Head    v.    Chesbrough    (13    Ohio    Cir.     Ct. 

Rep.   354) 406,  431 

Heald  v.  Yumisko  (N.  D.)  (75  N.  W.  Rep. 

806   [1898]) 410 

Healy  v.  Joliet  R.  Co.  (2  111.  App.  435)....  234 

Heard  v.  James  (49  Miss.  236) 320 

Heaver  v.  Morgan  (W.  Va.)  (23  S.  E.  Rep. 

874)    526 

Hebron  G.  Rd.  Co.  i>.  Harvey  (90  Ind.  192)  172 
Hedges  v.  West  Shore  R.  Co.  (N.  Y.  App.) 

(44  N.  E.  Rep.  691) 121 

Heffeman  v.  Otsego,  W.  P.  Cp.  (Mich.)  (43 

N.  W.   Rep.   [1096]) 613 

Hefferberth  v.  Meyers  (N.  Y.)   (App.   Div. 

[1896]) 336 

Heilbron  r.  Fowler  S.  Canal   Co.  (75  Cal.  426)    61 
v.    King's    River,    etc.,    Co.    (Cal.)    (17 

Pac.    Rep.   933    [1888]) 105,419 

v.  76  Ld.   &  Water  Co.   (Cal.)   (30  Pac. 

Rep.   802) 57 

Heinz   v.    Cramer   (Iowa)    (51    N.    W.    Rep. 

173)    497 

Heller   v.    Cohen    (Sup.)    (41    N.    Y.    Supp. 

214)    633 

Helm  v.  Wilson  (76  Cal.  476  [1888]) 494 

Helmer  v.    Rehm    (Neb.)    (15    N.    W.    Rep. 

344)    555 

Heming  v.  Davis  (37  Tex.  183) 71 

Hemphill  v.  Annis  (N.   C.)   (26  S.  E.   Rep. 

152)    553 

v.  Boston  (Mass.)  (8  Cush.  195) 706 

Hempstead  v.   Ball  Electric  Light  Co.   (N. 

Y.)    (9  App.   Div.  48) 816 

Henderson  v.   Dennis   (177  111.   547   [1898]), 

501,  606 
v.    Hatterman    (111.    Supp.)    (34    N.    E. 

Rep.    1041) 411 

77.  Minneapolis  (32  Minn.  319) 186 

Hennefin  v.   Blake   (102  Mass.   297) 528 

Hennessy    v.    Murdock    (Sup.)    (17    N.    Y. 

Supp.    276) 448,  454,  649 

Henning  v.  Bennett  (Sup.)  (18  N.  Y.  Supp. 

645)    390 

Henry  v.  Ohio  R.   R.   Co.   (W.  Va.)    (21  S. 

E.    Rep.   863) 119,  192 

Herbst  v.  Merrifield  (Mo.)  (34  S.  W.  Rep. 

571)    521 

Herdic  v.   Young   (35   Pa.   St.   176) 320 

Herhold  et  al.   v.   City  of   Chicago    (6  Am. 

&  Eng.   Corp.   Cases  119) 703 

Herman  v.   Likens   (Tex.)    (29  S.   W.   Rep. 

757)    555 

Herpel   v.    Malone   (56  Mich.    199   [1885])...  611 

Herrick  t>.   Belknap   (27  Vt.   673   [1854]) 477 

v.  Hopkins  (Me.)   (10  Shep.  217) 545 

v.  Merritt  (Minn.)   (33  N.  W.   Rep.)...  555 

Hershfield    v.    Rocky    Mt.     Bell    Tel.     Co. 

(12   Mon.    102) 813 

Heselton   v.   Harmon    (Me.)    (14   Atl.    Rep. 

286)    703 

Hess    v.    Cheney    (Ala.)     (3    So.    Rep.    791 

[1888])    373,4",  588 

11.    Lancaster    (Com.    PI.)    (4   Pa.    Dist. 

Rep.   737) 308 

Hestonville,   etc.,   R.   Co.   v.   Phila.    (89  Pa. 

St.   210) 754 

Hetfield  v.   Baum  (N.  C.)   (13  Ired.  394)-..  237 


TABLE   OF  CASES. 


Xli 


Hetrich  v.  Deadlier  (6  Pa.  St.  32) 81 

Hewett  v.   West.   Un.   Tel.   Co.    (D.   C.)    (4 

Mackey  424) 821 

Heyer  v.  Lee  (40  Mich.  353  [1879]) 

Heyneman  v.  Blake  (19  Cal.  579) 

Hibbard  v.   Chicago   (111.)    (50  N.   E.   Rep. 

256)    718 

Hichok  v.  Hine  (23  Ohio  St.  523) 231 


77 


Hickey  v.   Hazard   (3   Mo.   App.  480) 
Hickox  v.   Chicago,  etc.,  R.   Co.   (78  Mich. 


SI: 


736 


Hicks  v.  Ivey  (Ga.)   (26  S.  E.  Rep.  68)....  562 


6i5) 
Tick' 
Higbee    v.    Camden,    etc.,    Co.    (19    N.    J. 

Eq.    276    [1868]) 721 

Higgins  v.    Barker   (42   Cal.   233) 75 

v.    Flemington    W.  .Co.    (36   N.   J.    Eq. 

538)    ^ 62 

v   Kusterer    (41    Mich.   318) 163,164 

v.   New  York,  etc.,    R.   Co.    (Sup.)    (29 

N.  Y.  Supp.  563) 90,115 

v.    Ragsdale    (Cal.)    (23   Pac.    Rep.   316)  612 

v.  Reynolds  et  al.   (31.  N.  Y.   151   [1865])  444 

High  v.   Pancake  (W.  Va.)   (26  S.   E.   Rep. 

536)    625 

Hilburn  v.    Harris   (Tex.)    (29  S.   W.    Rep. 

923)    523 

Hildreth    v.    Googins    (Me.)    (39   Atl.    Rep. 

550     [1898]) 7i5 

Hill  v.  Barnes  (11  N.  H.  395) 47 

v.  Buckley  (17  Ves.  401) 590 

v.   Cinn.,  W.   &  M.  Ry.  Co.  (Ind.)    (10 

N.    E.    Rep.    410    [1887]) 1720 

v.   King   (8  Cal.  336) 75 

v.  Morrey  (26  Vt.  178  [1854]) 35 L  352 

v.   Newman   (5  Cal.  445) 75.77 

Hillman    v.     Hardwick     (Idaho)     (51     Pac. 

Rep.   438) 74 

v.    White    (Ky.)    (44    S.    W.    Rep.    in 

[1898])    522 

Hillory  v.  Walker  (12  Veasey  139) 7°7 

v.   Smith   (32  Cal.   166,  27  Cal.  476), 

75,  214,  217,  625,  633 

Himes  v.  Jarrett   (26  S.   C.   480) 663 

v.  Johnson   (61   Cal.  259) 75 

Hinchley  v.   Nickerson   (117  Mass.  213) 81 

Hinckley  v.   Grouse   (125  N.   Y.   730) 501 

Hindson    v.    Marble    (Pa.    Sup.)     (33    Atl. 

Rep.   74)    217 

Hine    v.    N.    Y.    El.    R.    Co.    (36    Hun   293 

[1885])    764 

Hinkle   v.    Avery    (Iowa)    (55    N.    W.    Rep. 

77)    1720 

Hitchcock  v.  Southern  I.  &  T.  Co.  (Tenn.) 

(38  S.   W.   Rep.   588) 365/546,552,601 

Hitchins  v.   Frostburg   (68  Md.    100) . . . .  189,  272 

y.  Morrison    (72    Me.    331) 518 

Hittinger  v.  Ames   (121   Mass.  539) 165 

Hoadley  v.  San  Francisco  (50  Cal.  265) 702 

Hoar  v.  Goulding  (116  Mass.  132  [1874]) 606 

Hoard  v.  Des  Moines   (62  Iowa  326) 136 

Hoax  v.  Seat  (26  Mo.  178) 8 

Hoban   v.    Cable    (Mich.)    (60   N.    W.    Rep. 

466)     5540,  633 

Hobart   v.    Ford    (6   Nev.    77) 73.77 

v.  Wicks    (15    Nev.    418) 75 

Hobbs  v.  Lowell  (Mass.)  (19  Pick.  405)...-  706 

v.  Payson    (85    Me.    498) 555 

Hobein  v.  Frick  (69  Mo.  App.  262  [1897])..  588 
Hobson  v.  Philadelphia  (24  Atl.  Rep.  1048)  451 
Hocutt  v.  Wilmington  &  W.  R.  Co.  (N. 

C.)    (32  S.   E.  Rep.  681   [1889]) 101 

Hodge  v.   Lehigh  Val.   R.  Co.    (C.   C.)    (56 

Fed.   Rep.   195) 85 

Hodges   v.    Denny    (Ala.)    (5    So.    Rep.   492 

[1889])     588,  590 

v.  Williams  (95  N.   C.  331) 424 

Hodgins  v.  Toronto  (19  Ont.  App.  537)  .318,319 
Hodgkinson  v.  Ennon  (Eng.)  (4  B.  S.  229), 

207,  216 

-v.  Ennor   (4  B.   &  S.   241) 254 

Hoester  v.  Hemsath  (16  Mo.  App.  485)...  179 
Hoffman  v.  Armstrong  (46  Barb.  337).  .313,  315 
v.  Buschman  (Mich.)  (55  N.  W.  Rep. 

v.  Johnson   (Md.)   (i  Bland  Ch.   103)..  590 


§§ 
Hoffman   v.    Port   Huron,    City  of   (Mich.) 

(60  N.  W.   Rep.  831) 492,580,589 

v.  Stone  (7  Cal.  46) 75 

T v.  Tuolumne  Co.  W.  Co.  (10  Col.  413).     87 

Hoffstot  v.  Voigt  (Pa.)   (23  Atl.  Rep.  351).  343 
Hogg     v.     ConneUsville     Water     Co.     (Pa. 


Sup.)   (31   Atl.   Rep.   1010) 

Holden   v.    Chandler   (61   Vt.   291)... 

v.  Robinson   Mfg.   Co.    (65   Me.  215)...  233 


Holladay  v.  Daily  (19  Wall  609) 45 

Holland  v.  Thompson  (Tex.)  (35  S.  E. 

Rep.  19)  467,  572,  578,  583 

Hollenbeck  v.  Sykes  (Colo.  Sup.)  (29  Pac. 

Rep.  380)  549 

Holler  v.  Emerson  (Cal.)  (44  Pac.  Rep. 

1073)  577 

Holliday  v.  Maddox  (Kan.)  (18  Pac.  Rep. 

290  [1888])  542 

Hollingsworth  &  Co.  v.  Foxborough  W. 

S.  Dist.  (Mass.)  (42  N.  E.  Rep.  574)....  275 

v.  Walker  (Ala.)  (13  So.  Rep.  6) 529 

Holloway  v.  Delano  (Sup.)  (18  N.  Y.  Supp. 


v.  Southmayd   (Sup.)    (18 


707) 
Hol 


olmes  v.   Sapphire  Val.    Co.    (N 
S.   E.   Rep.  545) 


•••449,451,452,714 
N.   Y.   Supp. 

..451,452,714 
.   C.)    (28 


631 

v.  Straitman  (35  Mo.  293  [1864])  ----  543,546 
Holsman  v.  Boiling  Spring  B.  Co.  (14  N. 

J.  Eq.  335)  .....  :  ........................  209,216 

Hoist  v.  Streitz  (16  Neb.  249)  ...............  705 

Holston  S.  &  P.  Co.  v.  Campbell  (Va.)  (16 

S.    E.    Rep.    274)  ...........................  585 

Holton  v.   Whitney   (30  Vt.  410)  ............  518 

Holtzman  v.  Douglass  (18  Sup.  Ct.  Rep. 

65,    168  U.   S.   278)  ......................  521,523 

Home  Electric  Light  &  Power  Co.  v. 

Globe   Tissue-paper    Co.    (Ind.    Sup.)    (45 

N.    E.    Rep.    iro8)  ..........................     84 

Honsee  v.  Hammond  (N.  Y.)  (39  Barb. 

89)  .....................................  Ill,  222 

Hook  v.  Joyce  (Ky.)  (22  S.  W.  Rep.  651).  521 
Hooker  v.  Cummings  (N.  Y.)  (20  Johns. 

90)  ........................................  1720 

Hoole  v.  Attorney-General  (22  Ala.  190)  ----  704 

Hoosier    Stone    Co.    v.    Malott    (Ind.)    (29 

N.  E.  Rep.  412)  ............................  714 

Hooten  v.  Barnard  (137  Mass.  36)  ..........  181 

Hopkins  Accd.  v.  Dickinson  (9  Cush.  544), 

387,  431 

-  v.  Butte  &   M.   Com.   Co.   (Mont.)    (33 
Pac.   Rep.  817)  .............................     85 

—  v.  Kent   (9  Ohio    13)  ....................  423 

Hopper  v.  Hopper  (Pa.  Sup.)  (23  Atl.  Rep. 
321)    ........................................  no 

—  v.  Justice  (N.  C.)   (16  S.   E.   Rep.  626), 

-  v.  Hickman   (Mo.)    (46  S.   W.   Rep.  973 
[1898])    .....................................  626 

Home  v.  Smith  (15  Sup.  Ct.  Rep.  988)...  410 
Horton  v.  Brown  (Ind.)  (29  N.  E.  Rep. 

414)    ........................................  497 

Hostetter  -v.  Los  Angeles  Terminal  Ry.  Co. 

(Cal.)   (41   Pac.   Rep.  330)  ..........  580,598,633 

Hottell  v.  Farmers'  Protective  Ass'n 

(Colo.)  (53  Pac.  Rep.  327  [1898])  ..........  648 

Houck  v.  Yates  (82  111.   179)  ................  406 

Hougan  v.  Milwaukee,  etc.,  R.  Co.  (35  la. 

558)    ........................................  255 

Houghton  v.  The  C.  D.  &  M.  R.  Co.  (47 

Iowa  370  [1877])    .  .....................  ....  374 

Houston  v.  Houston,  etc.,  R.  Co.  (84  Tex. 

581)    .....................................  148,  791 

-  v.  Laffee  (46  N.  H.  507)  ................  740 

Hovey  v.   Hobson   (53   Me.   451)  ............     42 

Howard   v.   College   (116  Mass.   117)  ........  603 

-  v.  Ingersol  (17  Ala.  780)   (13  How.  380, 
423,    426)  ....................................  235 

Howe  v.  Howe  (99  Mass.  98)  ................     42 

Howell    v.    McCoy    (Pa.)     (3    Rawle    268),.... 

2l6,  222 

Howe's  Cave  L.  &  C.  Co.  v.  Howe's  Cave 
Ass'n  (Sup.)  (34  N.  Y.  Supp.  848)  .......  353 

Howsmon  v.  Trenton  W.  Co.  (Mo.  Sup.) 
(24  S.  W.  Rep.  784)  ........................  148 


xlii 


TABLE   OF  CASES. 


Hoy  v.  Sterrett  (Pa.)   (2  Watts  327,  460)...  326 
Hoyt  v.  Cline  (N.  Y.  App.)  (31  N.  E.  Rep. 
623)    ......................................     58 

-  v.   Hudson   (27  Wis.   656,   Dixon,   Chief 
Justice)    ...............................  1720,  177 

-  v.  Jeffers  (30  Mich.   181)  ................  830 

-  -  v.    Kennedy    (Mass.)    (48    N.    E.    Rep. 

1073  [1898]   ..............................  681,  683 

-  v.  So.  N.  E.  Teleph.  Co.  (60  Conn.  385)  319 
Hubbard  v.   Bell  (54  111.   121)  ..............  1720 

-  -  -v,  Kansas   City,  etc.,   Co.    (63  Mo.  68).  735 
Hudson   v.   Irwin    (50   Cal.   450   [1875])  ......  549 

Hudson    Riv.    Teleph.    Co.    v.    Watervliet 

Tpk.    Co.    (135   N.    Y.   393,   409,  410).  .  .292,  831 

-  Vt  -  (N.   Y.)   56  Hun  68;    121   N.  Y. 
397;     61    Hun    141)  ......................  827,830 

Hudson  Teleph.   Co.  v.  Jersey  City  (49  N. 
J.    Law   303)  ......................  i  .........  812 

Huff   v.    Crawford    (Tex.)    (34   S.    W.    Rep. 

606)  ........................................  572 

-  v.    Kentucky    Lumber    Co.    (45    S.    W. 
Rep.   84  [1898])  .............................     89 

-  v.   McAuley   (53   Pa.   St.   206)  ...........  663 

Huges    v.    Austin    (Tex.)    (33    S.    W.    Rep. 

607)  ........................................  195 

Hughes  v.   Graves   (59  Vt.  359)  .............  514 

-  v.  Momence  (111.)   (45  N.  E.  Rep.  300)  843 

-  v.  Providence  R.  Co.  (2  R.  I.  508,  512), 

407,  445 

Humbert    v.    Trinity    Church    (N.    Y.)    (24 
Wend.   604)  .................................  524 

Humphrey  v.   Boyden   (12  Q.   B.    139)  ......  323 

Humphries   v.    Cousins    (2   C.    P.    Div.   239)  272 

-  v.   Hoffman   (33  Ohio  395)  ..............  517 

Humphry  v.  Cooper  (183  Pa.  St.  432  [1898])  6n 
Hungerford  v.  Redford  (29  Wis.  345)  .......  320 

Hunt  v.  Bay  State  Iron  Co.  (97  Mass.  279)      8 
—  v.  Brown  (Md.)   (23  Atl.  Rep.  1029)  ----  451 

Hunter  v.   Pelham   Mills   (S.   C.)    (29  S.   E. 

Rep.    727    [1898])  ...................  114,115,132 

-  v.    Lowell    Gas    Co.    (Mass.)    (8    Allen 
169)    ........................................  264 

-  -  v.    Peake   (i   Johns.    Eng.    705;     s.c.,  29 

L.   G.   Ch.   785)  .............................  326 

-  v.   Smith    (9   Kan.    137)  ..................  752 

-  v.   Taylor    (22  Vt.   536)  ..................  312 

Hurdle  v.  Stallings  (N.  C.)   (13  S.  E.  Rep. 

720     [1891])  .................................  479 

Hurdman  v.  N.  E.  R.  Co.  (3  C.  P.  Div. 

168)    ........................................  272 

Hurlbutt  v.   Butenop   (27  Cal.   57)  ..........  573 

Hurley  v.  Brown  (98  Mass.  545  [1868])  .  .551,  553 
Huse  v.  Glover  (19  U.  S.  543)  ........  •  .....  245 

(Mich.) 


Husted  v.   Willoughby 


.)    (75   N.   W. 


Rep.  279  [1898]) 492 

Huston  v.  Bybee  (Oreg.)  (20  Pac.  Rep.  51 

1889])  74.  107 

v.  Leach  (53  Cal.  262) 261 

Huyck  v.  Andrews  (N.  Y.)  (20  N.  E.  Rep. 

581    [1889]) 712 


I. 


Idaho    Land    Co.    v.    Parsons    (Idaho)    (31 

Pac.    Rep.    791) 502,  503,  504 

Illinois,   etc.,   Canal   Co.   v.    Harris    (n    111. 

554)    406 

Illinois  C.  R.  Co.  v.  Illinois  (146  U.  S.  387)  242 

v.  O'Connor  (39  N.  E.  Rep.  563) 535 

-v.    State    (13    S.    Ct.    no) 382,421,424 

v.   Wakefield  (173  HI-  564) 685 

v.  Wilbourne   (Miss.)    (21   So.   Rep.   i), 

115,  116 
111.  'R.   Pac.    Co.   v.   Peoria  Bdg.  Assn.    (38 

111.   467) 240 

Illinois  Trust  &  Savings  Bank  v.  Arkansas 

City   (C.   C.   A.)    (76  Fed.   Rep.   271) 148 

Imber  v.    Springfield    (55   Mo.    119) 105 

Indiana,  B.  &  W.  Ry.  Co.  v.  Eberle  (Ind.) 


(ii   N.'  E.   Rep.  467   [1887]) 

Indiana   Cent.    Canal   Co.   v.   The   State   (53 


Ind.   575    [1876]) 

Indianapolis  v.   Huffer 


(30  Ind.  235), 


441 

554 


Indianapolis  St.  R.   Co.  v.   Citizens  St.   R. 

Co.    (127   Ind.   369) 784 

Ind.   Water   Co.   v.   Amer.   S.   Co.    (53  Fed. 

Rep.  974,  57  Fed.  Rep.  1000), 

51,  53,  209,  210,  2l6,  222 

Indianapolis  Water  Works  v.  Burkhart  (41 

Ind.  364) 167,  169 

Indians,  etc.,  R.  Co.  v.  Patchette  (59  111. 

App.  251) 52 

Ingalls  v.  Hart  Hardware  Co.  (Ky.)  (20  S. 

W.  Rep.  387) 390 

Ingals  v.  Plamondon  (75  111.  218  '[1874]) ...  649 
Ingraham  v.  Camden  W.  Co.  (82  Me.  335)  62 

v.  Chicago,  etc.,  Co.  (34  la.  249) 241 

v.  Wilkinson  (Mass.)  (4  Pick.  268) .  .406,  431 

Inhabitants  of  Township  of  Franklin  v. 

Nutley   Water   Co.    (N.    J.    Ch.)    (32   Atl. 

Rep.  381) 843 

Institute  v.  How  (27  Mo.  211) 703 

International,  etc.,  R.  Co.  v.  Pope  (62 

Tex.  313).... 751 

Iowa  v.  Illinois  (13  Sup.  Ct.  Rep.  239) 409 

Irvine  v.  Irvine  (9  Wall.  (U.  S.)  626)....  42 

v.  McKeon  (23  Cal.  475) 44 

Irwin  v.  Brown  (Tenn.)  (12  S.  W.  Rep.  340 

[1889])  234 

v.  Dixon  (9  How.  (U.  S.)  10) 704 

v.  Gt.  So.  Teleph.  Co.  (37  La.  Ann. 

63)  812 

v.  Janesville  Cot.  Mills  (Wis.)  (60  N. 

W.  Rep.  786) 85 

v.  Phillips  (5  Cal.  140) 75 

v.  Strait  (18  Nev.  436) 75 

v.  Towne  (42  Cal.  329) 603 

Iselin  v.  Starin  (N.  Y.  App.)  (39  N.  E. 

Rep.  438) 683 

Iverson  v.  Swan  (Mass.)  (48  N.  E.  Rep. 

282)  497,  498,  587 

Ivory  v.  Burns  (56  Pa.  St.  300) ...± 46 


Ivy  v.   Yancey   (Mo.)    (31 


Rep.   937)  516 


Jackson  v.  Babcock  (N.  Y.)  (4  Johns.  418)  668 

v.  Camp    (i    Cowen  605) 571 

v.  Clark   (7  Johns.   R.   217) 547 

v.  Douglass    (8   111.   367) 501 

v.  Freer   (17  Johns.  29) 502 

v.  Gager  (5  Cowen  383) 469 

v.  Lambert  (121   Pa.  St.   187) 575,  628 

v.  McConnell    (19   Wend.    174) 614 

v.  Moore    (6   Conn.   706) 615 

v.  Ogden   (7  Johns.  238) 502 

v.  Osborn   (2  Wend.    (N.   Y.)   555) 47 

v.    Perrine    (35   N.    J.    Law    137) 491 

v.  Reeves  (3  N.   Y.  293)... 


603 
527 
532 


v.    Stoetzel    (87    Pa,    St.    302) 

v.  Vermilyea   (6   c,owen  677) 

v.    Wendell    (5    Wend.    142) 

v.     Woodruff     (Woodworth,     J.,     in     i 

Cowen  276) 524,  526 

Jackson    &    Co.    v.    Ambler    (14   Johns.    96 

[1817])     474,  485 

Jackson  Milling  Co.  v.  Chandos  (Wis.)   (52 

N.    W.    Rep.    759) 75 

Jacksonville  v.   Lambert  (62  111.  519) 215 

Jacob  v.   Lorenz   (Cal.)    (33   Pac.   Rep.    119)     77 

Jacobs  v.  Allard  (42  Vt.  303) 208,222 

"Neb.")     (6f>    N. 

178 
v.    Crothers    (Md.)    (40 

Atl.    Rep.   261    [1898]) 381,388,516 


. 
Jacobson    v.-  Van    Boening    (Neb.)    (66    N. 

W.    Rep.    993) 
Jacob    Tome    Inst. 


Jaff.   Ry.   Co.  v.  Ogler  (82  Ind.  394)  ........ 

James  v.   Carter   (Ky.)    (29  S.   W.   Rep.    19)    89 

-  v.    Kansas    City,   etc.,    R.    Co.    (69   Mo. 

-  Pv.'  Lewis"  ('S'O"N."Y!'SUPP.  230  [1898])...  619 

-  v.  Williams  (31  Cal.  211)  ................     75 

Janesville   Cot.    M.   v.   Ford    (Wis.)    (52   N. 

W.    Rep.    764)  ..............................     75 

Janeway  v.   Barrett   (38  Vt.  316)  ............  421 

Jarvis    v.    Lynch    (Sup.)    (36    N.    Y.    Supp. 

220)      ........................................    376 


TABLE   OF  CASES. 


xliii 


Jay  v.  Michael  (Md.)  (35  Atl.  Rep 
Jaynes   v.    Omaha   St.   Ry. 
N.  W.   Rep.  67)  ....................  798,814 

Jean  v.   Penna.   Co.   (Ind.  App.)    (36  N.  E. 


§§ 

22)....  555 
Co.    (Neb.)    (74 

,816 


Rep.    159)  ................................  136,  173 

Jeanette  Borough  v.   Eschallier   (28  Pittsb. 


Leg.  J.    (N.    S.)   383    [1898]) 

Jeffers  (107  N.  Y. 
Jefferson   I.   Wks.  v.   Gill   Bros.    (14  W.   L. 


651) 


205 
1720 


Bull.  2) 
Jeffries  v.   E.  Omaha  Ld.  Co.   (10  Sup.  Ct. 

Rep.    518)  ...........................  378,  599,  613 

Jencks  v.    Miller    (Sup.)    (40   N.    Y.    Supp. 

1088)    .......................................  242 

Jenkins  v.   Fowler  (24  Pa.  St.  308)  .........  271 

—  v.   Sykes   (19  Fla.    148)  ..................  669 

—  v.   Trager   (40   Fed.    Rep.   726).  .495,  500,  573 
Jenks  V.   Kenny   (Super.)    (19  N.  Y.   Supp. 

243,  28  Abb.    N.   C.    154)  ...................  324 

Jennison  r.  Kirk  (98  U.  S.  453>  ............  73,  /  5 

Jensen  v.   Hunter   (Cal.)    (41   Pac.   Rep.   14)  662 
Jersey   City   Gas   Co.   v.    Dwight    (29   N.   J. 

Eq.  242)   ................................  841,  846 

Jester   v.    Francis    (Tex.)    (31    S.    W.    Rep. 

245)    ........................................  516 

Johnson  v.  Anderson  (18  Me.  76)  ........  447,449 

-  v.  Chicago,  etc.,  Ry.  Co.  (Wis.)  (50  N. 
W.   Rep.   771)    ..............................  177 

-  v.   Davidson  (111.)   (44  N.   E.  Rep.  499)  526 

-  v.   Owensboro,  etc.,   Ry.   Co.   (Ky.)    (36 

S.  W.  Rep.  8)  ...  ...........................  68- 

-  v.   Rayner  (Mass.)   (6  Gray  107)  ........  261 

-  v.    Scott    (n    Mich.    232)  ................  545 

-  v.    Skillman  ^29   Minn.    95)  .............  662 

.  E. 


v.   Simerly   (Ga.)    (16  S. 


Rep.  931)..  579 


v.  Sirret  (Sup.)  (31  N.  Y.  Supp.  917)..  5540 

v.  Williams  (Sup.)  (22  N.  Y.  Supp 

247)  550 

Johnson  Chair  Co.  v.  Agresto  (73  111.  App. 

384  [1898]) "".  306 

Johnston  v.  Jones  (i  Black  (U.  S.)  209), 


51,  383,  409 
Johnston  Cheese  Mfg.  Co.  v.  Veghte  (69  N. 

Y.    16) U...   ..........  260 

Joliet,  etc.,  R.  Co.  v.  Healy  (94  111.  416)..  1720 
Jollife  v.   Kite   (Va.)    (i   Call  301) 590 


Y.    16) U.... T :....  260 

ly  (94  111.  4i6)..  ] 

Jones  v.  Adams   (19  Nev.   78). 73,  75,  719 

—  V,  Brinkley  (N.  C.)  (29  S.  E.  Rep.  221 
[1898])    546 

v.  De  Coursey  (Sup.)   (42  N.  Y.  Supp. 

57?)  138 

v.  Dewey  (17  N.  H.  596) 464 

v.  Hughes  (Pa.)  (16  Atl.  Rep.  849 

[1889])  514 

v.  Johnson  (Tex.)  (25  S.  W.  Rep.  650)  234 

v.  Johnston  (18  How.  (U.  S.)  209) 51 

v.  Madison  Co.  (Miss.)  (8  So.  Rep. 

87)  516 

v.  Smith  (64  N.  Y.  180,  73  N.  Y.  205 

[1876])  497,  502,  519,  615 

v.  Soulard  (24  How.  (U.  S.)  41) 431 

v.  Van  Bochove  (Mich.)  (61  N.  W. 

Rep.  342) .650,  732 

v.  Webster  W.  Co.  (85  Me.  210) 614 

Joplin  Min.  Co.  v.  Joplin  (Mo.  Sup.)  (27 

S.  W.  Rep.  406) 211,544 

Joplin  &  W.  Ry.  Co.  v.  Kansas  City,  etc., 

Ry.  Co.  (Mo.)  (37  S.  W.  Rep.  540) 751 

Jordan  v.  Benwood  (W.  Va.)  (26  S.  E. 

Rep.  266) 187,  190,  721 

v.  Chenoa  (111.  Sup.)  (47  N.  E.  Rep. 

191)  706 

v.  Kraft  (Neb.)  (51  N.  W.  Rep.  286)..  343 

v.  Lang  (22  S.  C.  159  [1884]) 678 

Joseph  v.  Wild  (Ind.  Sup.)  (45  N.  E.  Rep. 

467)  661,  666 

Joyce  v.  Williams  (26  Mich.  332).. 493 

Judkins  v.  Elliott  (Cal.)  (12  Pac.  Rep.  116 

[887])  no 

Judson  v.  Duffy  (Mich.)  (55  N.  W.  Rep. 

837)    521 

—  v.  Sierra  (22  Tex.  365) 45 

Julian  v.  Woodsmall   (82  Ind.   568) 166,  731 

Junction    R.    Co.    v.    Boyd    (8  Phila.    (Pa.) 

224)    732 


Jungblum  v.  Minneapolis,  N.  W.  &  S.  W. 

R    Co.   (72  N.  W.   Rep.'97i) .....  120 

Junkans  v.   Bergm   (67  Cal.  267) 7<t 

Jutte  v.   Hughes   (67  N.  Y.  267) 274 


K. 


Kahl   v.    Schmidt   (Iowa)    (78   N.    W.    Rep. 

204   [1899]) S04 

Toting   (W.   Va.)    (24  S.    E.    Rep. 


V     • 

Kam  v. 


Kaler  v.  Campbell  (13  Oreg.  596)...  ye 

Kanaba  v.  Levelle  (Super.)  (23  N.  Y.  Supp. 

818)  34! 

Kanawha,  G.  J.  &  E.  R.  Co.  v.  Glen  Jean, 

L.  L.   &  D.  W.   R.   Co.   (W.  Va.)   (30  S. 

E.  Rep.  86  [1898])  536  7Si 

Kane  v.  New  York  El.  R.  (125  New  York  " 

186)  781 

Kansas  City  Inv.  Co.  v.  Fulton  (Kansas 

App  (46  Pac.  Rep.  188) 516 

v.  Swope  (79  Mo.  446) 172 

Kashman  v.  Parsons  (Conn.)  (39  Atl.  Rep. 

179  [1898]) :.  581 

Kaskaskia,  Prest.  of,  v.  McClure  (111.)  (47 

N.  E.  Rep.  72) 431 

Katz  v.  Kaiser  (10  App.  137,  41  N.  Y.  Supp. 

Kaukauna  W.  P.  Co.'  vV  Green  Bay 'Co.'  (12 

Sup.  Ct.  Rep.  173) 401 

Kay  v.  Kirk  (76  Md.  41)  (24  Atl.  Rep.  326)  166 
Kean  v.  Roby  (Ind.  Sup.)  (42  N.  E.  Rep. 

1011)  421 

Keating  v.  Cincinnati  (38  Ohio  St.  141) 334 

—  v.  Springer  (111.)  (34  N.  E.  Rep.  805)..  341 
Keener  v.  Union  Pac.  R.  Co.  (31  Fed.  Rep. 

128)  731 

Keeney  v.  Carillo  (2  N.  M.  480) 75 

Keer  v.  Hitt  (75  111.  51) 499 

Kehrer  v.  Richmond  (Va.)  (22  The  Reptr. 

219  [1886]) 186 

Kehy  v.  Snyder  (114  111.  313) 383 

Keir  v.  Peterson  (41  Pa.  St.  362) 281 

Keith  v.  Brocton  (136  Mass.  119) 186 

v.  Reynolds  (3  Greenl.  393) 572 

—  v.    Ridge    (Mo.)    (47    S.    W.    Rep.    904 
[1898])    343 

Keithsburg  v.   Simpson   (70  111.   App.  467), 

184,  194 
Keller  v.  Fink  (Cal.)   (37  Pac.  Rep.  411)...    84 

v.  Masser  (Ohio)  (Tap.  43) 352 

Kelley  v.  Natoma  Water  Co.   (6  Cal.  105)..     75 

—  v.  New  York,  City  of  (Sup.)  (27  N.  Y. 

Supp.      164) 207,  212 

v.     Ohio    Oil     Co.     (57    Ohio    St.    317 

[1897])   281,  282 

Kellinger  v.  42d  St.   R.   Co.   (50  New  York 

206)    781 

Kellog  v.   Hastings   (70  111.   598  [1873]) 552 

v.  Smith  (Mass.)  (7  Cush.  375)  .  .491,  496,  497 

Kellogg  v.  Malin  (50  Mo.  496) 732 

—  v.  New  Britain  (62  Conn.  232) 204,211 

Kelly  v.  Dunning  (39  N.  J.  Eq.  482) 1720 

v.  Lett  (N.  C.)   (13  Ired.  50) 84 

v.  Taylor  (La.)   (10  So.  Rep.  255) 337 

Kelsey  v.  Board  of  Fire  &  Water  Comm'rs 

of  City  of  Marquette  (Mich.)    (71   N.   W. 

Rep.  589) 150 

v.  King  (N.  Y.)  (32  Barb.  410,  33  How. 

Pr.  39) 703,  841 

Kelso  v.  Steiger  (Md.)  (24  Atl.  Rep.  18)...  628 
Kemper  v.  Collins  (n  S.  W.  Rep.  245 

[1889])  707 

Kempman  v.  Heintz  (Tex.)  (24  S.  W.  Rep. 

329)  467 

Kendall  v.  Green  (N.  H.)  (42  Atl.  Rep.  178 

[1894])  605 

Kendrick  v.  Latham  (Fla.)  (6  So.  Rep. 

871)  524,  687 

Kennedy  v.  Boykin  (S.  C.)  (14  S.  E.  Rep. 

809)  589 

• v.  Cumberland  (Md.)  (9  Atl.  Rep.  234 

[1886]) 706 


xliv 


TABLE    OS   CASES. 


Kennedy  v.  Erdman  (Pa.)  (24  Atl.  Rep.  643)  501 

v.   Farley  (Sup.)   (31  N.   Y.  Supp.  274)  467 

v.  Jones   (n  Ala.  63) 704,705 

Kennison  v.  Beverly  (146  Mass.  467) 272 

Kensit  v.  Grand  E.  R.   Co.   (Eng.)   (27  Ch. 

Div.    122) 61 

Kent  v.   Taylor   (N.   H.)    (13  Atl.   Rep.   419 

[1888])    406 

v.  Worthing  (L.  R.  10  Q.  B.  Div.   118)  145 

Kentucky  &  I.  Bridge  Co.  v.  Kreiger  (Ky.) 

(19  S.    VV.   Rep.   733) 756 

Kenyon  r.  Heart  ,(6  B-  &  M.  249) 352 

v.  Hookway  (Sup.)  (41  N.  Y.  Sup.  230, 

17    Misc.    Rep.    452) 714 

Keonings  v.  Jung  (Wis.)    (40  N.   W.   Rep. 

80 1    [1889]) 527 

Kerns    v.    Dean    (Cal.)    (19    Pac.    Rep.    817 

[1889]) 516 

Kerr  v.  Joslin  (Sup.)  (20  N.  Y.  Supp.  929)  116 

Kertz  v.  Hibner  (55  111.  514) 552 

Ketchum  v.   Newman  (116  N.  Y.  422) 324 

Keuchler  v.  Wilson  (Tex.)   (18  S.  W.  Rep. 

317)    617 

Kidd  v.   Laird   (15   Cal.    161) 75,77 

Kieffer  if.  Imhof  (26  Pa.  St.  438) 325 

Kile   v.    Yellowhead,    Town   of   (80   111.    208 

(1875)    551,  561 

Kilgour  v.  Wolf  (C.  P.)  (4  Ohio  N.  P.  183, 

6  Ohio  Dec.  343)... > 324,326 

Kimbal  v.   Gearhart  (12  Cal.  27) 75 

King  v.  Brigham  (Oreg.)  (31  Pac.  Rep.  601)  504 

v.  Poor  Laws  Comm'rs  (6  Ad.  &  El.  7)  812 

• v.   Smith  (Rice  10) 687 

v.   Wight  (Mass.)   (29  N.   E.   Rep.  644)  343 

Kingsbury  v.   Flowers   (65  Ala.  479) 267 

Kings  Co.  Fire  Ins.  Co.  v.  Stevens  (87  N. 

Y.   287) 446,  451 

Kingsley  v.   Gouldsborough   Ld.    Imp.    Co. 

(86    Me.    279) ' 715 

v.   Hillside  C.   &  I.   Co.    (Pa.)    (23  Atl. 

Rep.   259) 527 

Kinnaird  v.  Standard  Oil  Co.  (89  Ky.  469), 

264,  267 

Kipp  v.   Norton   (12  Wend.   127) 501 

Kirby   v.    Fitzpatrick    (Pa.    Sup.)    (32    Atl. 

Rep.   53) 343 

Kirchner  v.  Miller  (39  N.  J.   Eq.  355) 499 

Kirk  v.  Bartholomew  (Idaho)  (29  Pac.  Rep. 

40,    42) 75 

Kirkham  v.   Sharp   (i   Whart.  323) 578 

Kirkwood   v.    Finegan    (Mich.)    (55    N.    W. 

Rep.   457) 341 

Kirwan  v.  Murphy  (U.  S.  C.  C.  Minn.)  (85 

Fed.   Rep.  275) 421 

Kleinschmidt   v.    Greiser    (Mont.)    (37   Pac. 

Rep.    5) 75 

Klenk   v.    Town    of   Walnut   Lake    (Minn.) 

(53   N.   W.    Rep.   703) 703 

Klinkener  v.  School  District  (i  Jones  (Pa.) 

144)    .- 703 

Kneeland  v.  Van  Valkenberg   (46  Wis.  434) .  449 
Knight  v.   Albemarle,  etc.,   R.   Co.    (in   N. 

C.    80) 114,  134 

v.  Elliott  (57  Mo.  317  [1874]) 577,597 

v.  Heaton  (22  Vt.  480) 707 

v.   Wilder   (2   Cush.  202) 387 

Knights  of  P.  v.  Leadbeter  (Pa.)  (39  W.  N. 

Cas.  188) ; .  •• 107 

Knippa   v.    Umlang    (Tex.    Civ.    App.)    (27 

S.   W.   Rep.   915) 579,597 

Knoll  v.  Light  (76  Pa.  St.  268) 90 

Knowles  v.   Bean  (87  Me.  331) 555 

v.   Nichols   (2  R.   I.   198) 703 

—  v.   Toothaker   (58  Me.    172) 499,57* 

Knowlton  v.  Johnson  (37  Mich.  47) 8 

Knox  v.  Clark  (123  Mass.  216  [1877]) 628 

Knudson    v.     Omanson     (Utah)     (37     Pac. 

Rep.    250)    421,424,499 

Koch  v.  Del.,  L.  &  W.  R.  Co.  (N.  J.)  (24 

Atl.    Rep.   442) 113,  "4,  131.  i32.  T37 

Kock  v.  Dunkel  1,90  Pa.  St.  264  (1879]).  .572,  583 
Kohler  v.    Smith    (3    Super.    Ct.    (Pa.)    176, 

39  W.   N.   C.   359) 7*7 

Koon  v.   Hollingsworth    (97  111.   52) 471 

Koons  v.  McNamee  (6  Pa.  Super.  Ct.  445).  681 


Krall  v.  United  States  (C.  C.  A.)   (79  Fed. 

Rep.   241) 

Kranz  v.  Baltimore  (64  Md.  491) 

Kron   i'.    Daugherty    (9   Pa.    Super.    Ct.    163 

[1899])    

Kruegel    v.    Nitschmann    (Tex.    Civ.    App.) 

(40  S.   W.   Rep.   68) 

Kuechler  v.  Wilson  (Tex.  Sup.)   (18  S.  W. 

Rep.  317) 577} 

Kupman    v.    Blodgett    (Mich.)    (14    N.    W. 

Rep.    109) 

Kurts  v.  Hibner  (55  111.  514) 

Kurtz  v.  Hoke  (Pa.)   (33  Atl.  Rep.  540)... 
Kurz  v.  Miller  (Wis.)   (62  N.  W.  Rep.   182) 
Kyle  v.  Logan  (87  111.  67) 


74 

212. 
62O 

715 

583 

242 


53 

502 
704 


Lacustrine   Fer.   Co.   v.   L.   G.   &  Fer.   Co. 

(82  N.  Y.  476) 8 

Ladd    v.    Flynn    (Mich.)    (51    N.    W.    Rep. 

203)    341 

v.  Foster  (31  Fed.  Rep.  827) 242 

v.  Philadelphia  (77  Pa.  St.  485) 334 

Lake  v.  Tolles  (8  Nev.  285) 58 

Lake  Erie  &  W.  R.  Co.  v.  Young  (Ind.  • 

Sup.)  (35  N.  E.  Rep.  177) 1:8 

v.  Whitham  (111.)  (40  N.  E.  Rep.  1014)  701 

Lake  Shore  &  M.  S.  R.  R.  v.  Platt  (Ohio 

Sup.)  (41  N.  E.  Rep.  243) 406 

Lake  Sup.  Ld.  Co.  v.  Emerson  (38  Minn. 

406) 51 

Lally  v.  Rossman  (Wis.)  (51  N.  W.  Rep. 

1 132)  421 

Lamb  v.  Reclamation  Dist.  (73  Cal.  125)..  136 

v.  Richets  (n  Ohio  311) 423 

Lambert  v.  Alcorn  (111.  Sup.)  (33  N.  E. 

Rep.    53) 173,  178 

—  v.  Dessey  (Ld.  Raym.  442,  467) 316 

Lamoreaux  r.  Creveling  (Mich.)  (61  N. 

W.  Rep.  783).-, ::_-. 494 

v.  Kei 


Lampe 


Kennedy  (49  Wis.  601  [1880]), 


Lampman  v.  Van  Alstyne  (Wis.)  (69  N.  W. 

Rep.    171) 582 

Lamprey    v.    Metcalf    (Minn.)    (53    N.    W. 

Rep.    1139) 414,  421 

v.    State    (52    Minn.    181) 421 

Lancaster  v.   Richardson   (N.   Y.)    (4  Lans. 

136)    319 

Land  Co.  v.  Saunders  (103  U.  S.  316) 576 

Landers  v.  Town  of  Whitefield   (111.   Sup.) 

(39  N.   E.    Rep.   656) 683 

Lang  v.   Salliotte   (Mich.)    (44  N.   W.   Rep. 

938)    462 

Langdell's  Eq.  Pleading  (sees.  119-127) 511 

Langdon  v.  Templeton  (Vt.)   (28  Atl.  Rep. 

866)    523 

Langerman    v.    Nichols    (Tex.)    (32    S.    W. 

Rep.    124) 583 

Langley  v.  Gallipolis   (2  Ohio   St.) 702 

Lankin  v.  Terwilliger  (Oreg.)  (29  Pac.  Rep. 

268)     582,  715 

Lantry  v.    Parker   (Neb.)    (55   N.    W.    Rep. 

962)   521,  528 

—  v.   Wolff   (Neb.)    (68   N.   W.    Rep.   494)  533 
Lapp  v.   Guttenhurst   (44  S.   W.   Rep.  964), 

328,  332 
Larimer  County  Ditch   Co.  v.   Zimmerman 

(Colo.  App.    (34  Pac.   Rep.   mi) 88 

Larimer,  etc.,  St.  R.  Co.  v.  Larimer  St.  R. 

Co.    (137  Pa.   St.   533) 786 

Larimer  R.  Co.  v.  People  ex  rel.  Luthe  (8 

Colo.    614) 75 

Larimer  &  W.   R.   Co.  v.  Water  &  S.   Co. 
Larned  v.  Tangeman  (65  Cal.  334) 71 

(Colo.  App.)   (42  Pac.  Rep.  1020) 108 

Larsen    v.    Peterson    (N.    J.    Ch.)    (30   Atl. 

Rep.    1094) 7*9 

Larson  v.    Metropolitan   St.    Ry.    Co.    (Mo. 

Sup.)    (19  S.   W.   Rep.  416) 333 

Lasala  v.  Holbrook  (N.  Y.)   (4  Paige  169), 

322,  323,  325,  327 


TABLE   OF  CASES. 


xlv 


Last  Chance  Min.   Co.  v.  Bunker  Hill  Co. 

(C.  C.  Idaho)  (49  Fed.  Rep.  430) 76 

Lathrop  v.  Eisner  (Mich.)  (53  N.  W.  Rep. 

791)  650 

Latrobe  v.  Western  Tel.  Co.  (74  Md.  232)..  818 
Lawrence  v.  Lawrence  (Oreg.)  (12  Pac. 

Rep.  186) 516 

v.  Tenant  (N.  H.)  (15  Atl.  Rep.  543 

[1888])  620 

Layton  v.  N.  Y.  &  T.  Land  Co.  (Tex.)  (29 

S.  W.  Rep.  1 120) 573 

Leake  v.  Caffey  (Miss.)  (19  So.  Rep.  716)  555 
Learned  v.  Castle  (78  Cal.  454) 101 

—  v.   Talmadge   (26  Barb.    (N.   Y.)   444) ..  516 
Leavenworth  v.  Prospect  R.  W.  Co.  (Com. 

PI.)  (8  Kulp.  310) no 

Leavenworth  Lodge  v.  Byers  (Kan.)  (38 

Pac.  Rep.  261) 327 

Lebeaume  v.  Poctlington  (21  Mo.  36) 379 

Lecomte  v.  Toudouze  (Tex.)  (17  S.  W. 

Rep.  1047) 497,  498 

Lee  v.  Lake  (14  Mich.  12) 704 

—  v.   McLeod    (12   Nev.   280) 662 

Leeper  y.    Baker   (68   Mo.   400,  407) 521 

Leffler  y.    Burlington   (18   Iowa  361) 705 

Lehigh  C.  &  W.  Co.  v.  Scranton  G.  &  W. 

Co.   (Com.  PI.)    (6  Pa.  Dist.   Rep.  291). .57,  62 
Lehigh  V.   Ry.   Co.  v.   McFarlan   (43  N.  J. 

Law   605    [1875]) 674,676,678 

Leidlein  v.  Meyer  (Mich.)  (55  N.  W.  Rep. 

367)   107,  185 

Leigh  v.  Jack  (Eng.)   (3  Ex.  Div.  264).  .453,  454 

Leigh  Co.  v.  Ind.  D.  Co.  (8  Cal.  323) 74 

Leland   v.    Portland   (2   Qreg.   46) 704 

Lembeck  v.  Nye  (47  Ohio  St.  336) 421,423 

Lemrnon   v.    Hartrook   (80  Mo.    13) 499 

Lenning's  Ex'rs  'y.   White   (Va.)    (20  S.    E. 

Rep.   831) 554 

Lente    v.     Clark     (Fla.)     (i     So.     Rep.     149 

[1887])    553 

Leon    &    H.    Blum    Land    Co.    v.    Dunlap 

(Tex.  Civ.  App.)   (23  S.  W.  Rep.  473)----  5QO 
Leonard  v.  Detroit  (Mich.)  (66  N.  W.  Rep. 

488)    683 

v.  Shatzer  (Mont.)   (28  Pac.  Rep.  457), 

no,  254 
Lepreel    v.    Kleinschmidt    (N.    Y.)    (19    N. 

E.   Rep.  812   [1889]) 336 

Lerned  y.  Morrill  (2  N.   H.   197) 499 

Lessee  y.  Caruthers  (3  Yeates  527  [1803])..  628 


Letts    v.    Kessler    (Ohio)    (42 
765) 


34i 


Levaroni  v.  Miller  (34  Cal.  231) 75 

Levis  v.  Newton  (C.  C.  S.  D.  Iowa)  (75 

Fed.  Rep.  884) 816 

Levy  y.  Samuel  (Super.)  (23  N.  Y.  Supp. 

825)  308,  341 

v.  Verga  (25  Neb.  764) 517 

Lewis  v.  Johnson  (D.  C.)  (76  Fed.  Rep. 

476)  241 

v.  Lewis  (4  Oregon  177) 573 

v.  Prien  (Wis.)  (73  N.  W.  Rep.  654 

1897])  -. .  631 

v.  Roper  L.  Co.  (N.  C.)  (18  S.  E.  Rep. 

52)  625 

v.  Springfield  W.  Co.  (Pa.  Sup.)  (35 

Atl.  Rep.  187) 58 

Lewiston  v.  Booth  (Idaho)  (34  Pac.  Rep. 

809)  442 

Light  H.  &  W.  Co.  y.  Jackson  (Miss.) 

(19  So.  Rep.  771) 148 

Lillywhite  v.  Trimmer  (16  L.  T.  N.  S. 

318)  207 

Lincoln  v.  Commonwealth  (164  Mass.  350)  334 

v.  Davis  (53  Mich.  375) 421 

v.  Wilder  (29  Me.  169) 571 

Lincoln  St.  Ry.  Co.  v.  Adams  (Neb.)  (60 

N.  W.  .Rep.  83) 178 

Lind  v.  San  Luis  Obispo  (Cal.)  (42  Pac. 

Rep.  437) 209 

Linen  v.  Maxwell  (N.  H.)  (40  Atl.  Rep. 

184  [1803])  521 

Lingwood  v.  Stowmarket  Co.  (Eng.)  (i  Eq. 

77,  336)    206,  216 


§§ 
Linnartz   v.    McCulloch    (Tex.)    (27    S.    W. 

Rep.    279)  ...................................  559 

Lipscomb    y.     Underwood     (Tex.)     (27    S. 

W.   Rep.    155)  ...............................  58a 

Litchfield    v.    Scituate    (136    Mass.    39,    48 


-  v.  Sewell  (la.)   (66  N.  W.  Rep.  104)....  530- 

-  y.   Southworth   (67  111.  App.  398  [1896])  215 

—  y.   Whitenack   (78  111.   App.  364)  ----  212,223 

Little  -v.    Newton    (9   Dowl.   437)  ............  475 

Littlefield  v.  Boston  &  A.  R.  Co.  (15  N.  E.     ' 

Rep.    648    (Sup.    Ct.    Mass.)    [1888])  .......  685 

—  v.  Littlefield  (28  Me.  184)  ...............  373 

Little  Schuylkill  Nav.   Co.  v.   Richards   (57 

Pa.   St.    142)  ...............  .................  214 

Livingston  v.   Pippin   (31   Ala.   542)  .........   142: 

Llano,  City  of,  v.  County  of  Llano  (5  Tex. 

Civ.    App.    133)  .............................  205, 

Lobdell  v.  Simpson  (2  Nev.  274)  ..........  71,  7c. 

Lobit  v.    McClave    (Tex.)    (28   S.    W.    Rep. 

726)     ....................................  588,  593 

Lochte  y.   Austin   (69  Miss.  271)  ............  633- 

Locks    and    Canals    y.    Lowell    (Mass.)    (7 

Gray  223)  ...................................  205, 

Lockie  v.   Mut.  Un.  Tel.   Co.   (103  111.  401)  825 
Lockwood  v.  N.  Y.  &  N.  H.  R.  R.  Co.  (37 

Conn.   387    [1870])  .......................  381,382 

Lockwood    Co.    v.    Lawrence    (77    Me.    297 

[1885])  ..............................  207,  214,  222 

Lode  v.   Shepherd   (2  Strange  1004  [1735]), 

701,  703 
Lodge  y.   Barnett  (46  Pa.   St.  480)  ..........  573, 

—  v.   Lee   (6  Cranch  237)  ..................  572 

Logan  v.   Driscoll   (19  Cal.  623)  .............     75 

—  V.  Evans  (Ky.)   (29  S.  W.  Rep.  636)...  573: 
Logansport  v.   Uhl   (99  Ind.   531)  ...........  143 

Lohr  v.   Met.   Ct.    R.   Co.    (New  York)    (10 

N.   E.    Rep.   528   [1887])  ....................  794. 

London  &  San  Francisco  Bank  v.  City  of 

Oakland   (U.   S.   C.   C.)    (86  Fed.   Rep.  30 

[1898])   ..................................  682,  716 

Long  v.  Duluth  (Minn.)  (51  N.  W.  Rep. 

913)    ........................................  147 

—  v.    Hall    (Tenn.)    (46    S.    W.    Rep.    343 
[1898])    .....................................  516- 

—  v.    Mayberry    (Tenn.)    (36   S.    W.    Rep. 
1040)    .......................................  712 

Long  Island  Water-supply  Co.  v.  City  of 
Brooklyn  (17  Supp.  Ct.  Rep.  718)  ........  147 

Longworth  v.  City  of  Cincinnati  (Ohio)  (29 
N.  E.  Rep,  274)  ...........................  703. 

Lonsdale  v.  Nelson  (2  B.  &  C.  302)  ........  316. 

Lord  v.  Carbon  Mfg.  Co.  (42  N.  J.  Eq.  157 
[1886])  .................................  284,  334 

-  v.   Meadville  W.   Co.    (135   Pa.   St.   122, 

26  W.   N.   C.   no)  ........................  62,100 

Loring  v.  Newton  (8  Greenl.  61,  68  [1831])..  586 
Lorman   y.   Benson    (8   Mich.    18)  ...........   164 

Los  Angeles  F.  &  M.  Co.  v.  Thompson 

(Cal.)    (49   Pac.    Rep.    714)  .................  573 

Losey  v.  Buchanan  (51   N.  Y.  477)  .........  208 

Loughran  v.  Des  Moines  (72  la.  384)  ......  223; 

Louisville  &  N.  R.  Co.  v.  Beauchamp 

(Ky.)    (40  S.   W.   Rep.  679)  ...........  82,83,84 

-  v.  Bonhays  (Ky.)   (21  S.  W.  Rep.  526), 

-  v.  Johnson   (Ky.)   (37  S.  W.  Rep.  844)  742 
Louisville    &    N.    C.    Rv     Co.    v.    Philyaw 

(Ala.)   (6  So.  Rep.  837)  ....................  529, 

Louisville,  etc.,  R.  Co.  v.  Postal  Tel.  Cab 
Co.  (68  Miss.  806)  ..........................  825 

—  v.  Thompson  (18  B.  Mon.  735)  .........  740 

Louks  v.  Kenniston  (50  Vt.  1  16)  ............  499- 

Louth   v.   Thompson    (Del.)    (39   Atl.    Rep. 

iioo  [1897])  ..............................  716,  71$ 

Low   v.    Rizor    (Oreg.)    (37   Pac.    Rep.   82), 

62,  75,  76 

-  v.  Schaffer  (Oreg.)   (33  Pac.  Rep.  678), 

54,  58,  62,  71,  75 

-  v.  Tibbetts  (72  Me.  92)  ..............  448,451 

Lowe    v.    Harris    (N.    C.)    (17    S.    E.    Rep. 

539)    ........................................  559> 

Lower  Kings  D.  Co.  y.  L.  K.  R.  &  F.  C. 
Co.  (60  Cal.  408)  ............................  77 


xlvi 


TABLE   OF  CASES. 


Lowndes  v.   Wicks   (Conn.)    (36  Atl.   Rep. 

1072)  500,  501 

Luce  v.  Carley  (N.  Y.)  (24  Wend.  451 

[1840])  401,  402,  406 

Lucot  v.  Rodgers  (Pa.  Sup.)  (28  Atl.  Rep. 

242)  193 

Ludlow  v.  Hudson  Riv.  R.  Co.  (4  Hun 

239,  6  Lans.  128) 331 

v.  New  York,  etc.,  R.  Co.  (12  Barb. 

(N.  Y.)  440) 735 

v.  Troste  (Ky.)  (45  S.  W.  Rep.  661 

[1898])  323 

Lulay  v.  Barnes  (Pa.)  (34  Atl.  Rep.  52) 526 

Lumpkin  v.  Draper  (Tex.)  (18  S.  W.  Rep. 

1058)  630 

Lunt  v.  Holland  (14  Mass.  149)  .99,  171,  573,  598 

Lush  v.  Druse  (4  Wend.  313) 573 

Lux  v.  Haggin  (69  Cal.  255) 71,74,75 

Lyle  v.  Little  (Sup.)  (33  N.  Y.  Sup.  8)....  336 

Lyman  r.  Gedney  (114  111.  388) 573 

v.  Hale  (n  Conn.  177) 313,315 

Lynch  v.  Livingston  (8  Barb.  463) 46 

v.  Mayor  (76  N.  Y.  60) 187 

Lynde  v.  Williams  (68  Mo.  365) 528 

Lyon  v.  Fishmongers  Co.  (L.  R.  i  App. 

Cas.  682) 51 

v.  Green  Bay  &  Min.  Ry.  GO.  (42 

Wis.  544  [1887]) 353,755 

v.  Waldo  (36  Mich.  345) 48 

Lyttle  Creek  W.  Co.  v.  Perdew  (65  Cal. 

447) 77 


M. 


Macauley  v.  Cunningham  (60  111.  App.  28)  611 

Mace  v.  Philcox  (15  C.  B.  N.  S.  600) 237 

Macomber     v.     Godfrey     (108     Mass.     219 

[1871])     1720 

Macon  v.  Franklin  (12  Ga.  239) 703,  704,  705 

Macris  v.  Bicknell  (7  Cal.  261) 75 

Madden  v.  Mayers  (Wis.)   (73  N.  W.  Rep. 


43 


[1897]).-. 
den  v.  Tu 


Madden  v.  Tucker  (46  Me.  367  [1857]) 558 

Magee  v.  Overshiner  (Ind.)  (49  N.  E.  Rep. 

951    [1898]) 815 

Magoun   v.    Lapham    (21    Pick.    135    [1838]), 

573,  598 

Mahan  v.   Brown    (13  Wend.   261) 271 

Mahasha  Co.  R.   Co.  v.  Des  Moines  V.  R. 

Co.    (28  la.  437) 749 

Mahill  v.  Torrence  (163  111.  277) 516 

Mahler  v.   Brunder  (Wis.)   (66  N.  W.  Rep. 

502) 714 

Mahon  v.  Richardson  (50  Cal.  333  [1875])..  410 

Mailhot  v.   Pugh   (30  La.  Ann.   1350) 134 

Mairs    v.    Manh.    R.    E.    Assn.    (89    N.    Y. 

506)    274 

Major  v.   Watson   (73   Mo.   661    [1881]), 

577,  578,  617 

Makepiece  v.   Bancroft   (12  Mass.  469) 499 

Malad   Val.    Irr.    Co.   v.    Campbell    (Idaho) 

(18  Pac.   Rep.  52  [1888]) no 

Malcott  v.   Price   (109  Ind.  22) 662 

Manderschild  v.  Dubuque  (29  Iowa  73) 706 

Mandlebaum  y.  Russell  (4  Nev.  551) 240 

Mpngam  v.  Sing  Sing  (n  App.  Div.  212,  42 

N.  "Y.   Supp.  950) 449 

Manistee  Mfg.  Co.  v.  Cogswell  (Mich.)  (61 

N.    W.    Rep.    884) 497 

Mankato  v.  Willard  (13  Minn.  23) 702 

Manners     v.     Havershill     (135     Mass.     165 

[1883])    352 

Manning   v.    Port    Reading   R.    Co.    (N.    J. 

Ch.)  (33  Atl.  Rep.  802) 650,665 

Manufacturers'   Natural    Gas   Co.   v.    Leslie 

(49    N.    E.    Rep.    946) 850 

Manufacturing    Co.    v.    Atty.-Gen'l    (124   U. 

S.  581,  8  Sup.  Ct.  Rep.  631) 255 

Marcy  v,  Taylor  (19  111.  634) 703 

Marden  v.  Chase  (32  Me.  229) 46 

Marsh  v.   Ne-Ha-Sa-Ne   Park  Assn.    (Sup.) 

(42  N.  Y.  Supp.  996) 603 


Marshall   v.    Hershey    (Pa.)    (39   Atl.    Rep. 
887    [1898])  ...............................  .60,  75 

-  v.  Peters  (N.  Y.)  (12  How.  Pr.  218)....  166 

-  v.    Reed    (48   N.    H.    36)  ................  463 

-  v.   Wenninger  (Sup.)    (46  N.   Y.   Supp. 
670)    ........................................  650 

-  v.  Niles  (8  Conn.  369)  ..................   e^ 

Martin  v.   Bliss   (5  Blackf.    (Ind.)   35)  ......  234 

—  v.   Gleason    (139   Mass.    183)  .....  143,212,220 

-  v.  Simpson  (Mass.)   (6  Allen  102)  ......  180 

Martyn  v.   Curtis   (Vt.)    (35  Atl.   Rep.  333), 

626,  620 
Marvin  v.  Elliot  (Mo.)  (12  S.  W.  Rep 

899)    ......................................  ..S50 

Mason  v.  Ammon  (Pa.)  (11  Atl.  Rep.  499 

[1888])    .....................................  520 

-  v.   Brooklyn,   etc.,   R.   Co.    (N.   Y.)    (35 
Barb.  373)  ...............................  749)  79S 

-  v.   Hoyle   (56  Com.  255   [1888])  ........  81,84 

Masonic  Temple  Ass'n  v.   Banks  (Va.)    (27 

S.   E.    Rep.   490)  .....................  86,112,116 

Massey  v.  Goyder  (4  C.  &  P.   161)  ......  322,327 

-  v.    Ruimer    (69   Miss.    667)  ..............  516 

Mastenbrook  v.   Alger   (Mich.)    (68   N.   W. 

Rep.  213)  ..............................  60,  71,  107 

Masterson  v.    Munro    (Cal.)    (38  Pac.    Rep. 
1106)    .......................................  600 

-  v.  West  End.  R.  Co.   (72  Mo.  342)  .....  741 
Mathews  v.   Central   U.   Tel.    Co.    (14  Ohio 

C.    C.   273)  ..................................  813 

-  -  v.  St.  Paul,  etc.,  R.  Co.  (18  Minn.  434)  740 
Mathewson  v.   Hoffman   (77  Ore.  420)  ......  107 

Mathis  v.  Board  of  Assessors  (La.)  (16  So. 

Rep.   454)  ...................................  376 

Matthews    v.    Metcalf    (Iowa)    (66    N.    W. 
Rep.    189)  ..................................  85,  86 

-  v.    Stillwater    Co.    (Minn.)    (65    N.    W. 
Rep.   947)  ...................................  212 

Mauser  i'.  Blake  (62  Me.  38)  .............  421,422 

May  v.  Slade  (24  Tex.  205)  ..................  353 

Maybin  v.  Conlon  (4  Dall.   (U.  S.)  298)  ____  486 

Mayo  v.   Turner   (Vt.)    (i    Munf.   405)  ......     86 

Mayor's  Heirs  v.  Rice  (57  Mo.  485  [1874])  504 
Maywood  Co.  et  al.  v.  Village  of  Maywood 

(111.)   (5  N.  E.  Rep.  866)  ..................  704 

McAfee  v.  Arline  (Ga.)  (10  S.  E.  Rep. 

441)    ........................................  555 

McAllen  v.  Raphael  (Tex.)  (32  S.  W.  Rep. 

44Q)       ........  ^^^ 

McAulay  v.    Western   Vt.    R.    Co.    to  Vt 

3")    ................................  665,  735,  741 

McBroom  v.  Thompson  (Ore.)  (37  Pac. 

Rep.    57)  ....................................  662 

McBurney  v.  Young  (Vt.)  (32  Atl.  Rep. 

492)    ........................................  421 

McCabe  v.  Hood  (Cir.  Ct.)  (i  O.  C.  D. 

292)    ........................................  712 

McCaman  v.  Stagg  (Kan.  App.)  (43  Pac. 

Rep.   86)  ....................................  387 

McCann  v.  Strang  (Wis.)  (72  N.  W.  Rep. 

1117   [1897])  .................................  305 

McCarney  v.  Higdon  (50  Ga.  629)  ..........  533 

McCartney  v.  Dennison  (Cal.)  (^35  Pac.  Rep. 

766)    ........................................  554 

-  v.  Chicago,  etc.,  R.  Co.  (112  111.  6n)...  795 
61  1)    ........................................  795 

McClafferty  v.  Fisher  (Pa.)  (2  Atl.  Rep.  610 


[1885]) 

McClellan  v.       ure     3      o.       pp.  430 
McCleneghan   v.    Omaha,   etc.,    R.    Co.    (25 

Neb.   523)  ...................................  119 

McCleod  v.  Bishop  (Ala.)  (20  So.  Rep.  130)  528 
McClintock  v.   Rogers   (n  Ills.  279)  ........  577 

McConnell    v.    Lexington    (12    Wheat.    (U. 

S.)     582)  ....................................  703 

-  v.  Rathbun  (46  Mich.  305)  ..............  545 

McCormack  v.   Silsby   (Cal.)    (22   Pa.    Rep. 

874)    ..................................  ,  .....  516 

McCormick  v.  Barnum  (10  Wend.  104)  .....  502 

-  v.   Horan   (81   N.   Y.  86)  .............  184,205 

-  v.   Kans.    C.,  etc.,   R.   Co.    (57  Mo.  433 
[1874])   ...........  .  .......................  191,  192 

McCoy  v.   Danley   (20  Pa.   St.   85)  ..........     85 

McCrary  v.  Beaudry  (67  Cal.   120)  ..........     73 


TABLE   OF  CASES. 


xlvii 


McCruden  v.  Rochester  Ry.  Co.   (Cir.  Ct.) 

25  N.  Y.  Supp.   114) 448 

McCulloch  v.  Aten  (2  Ohio  308) 423 

McCullough  v.  Nail  (N.  C.)  (4  Rich.  68)...  431 

v.  Olds  (Cal.)   (41  Pac.  Rep.  420) 613 

v.  St.  Paul,  M.  &  M.  Ry.  Co.   (Minn.) 

53  N.    W.    Rep.   802) 333 

v.  Wall  (N.  C.)   (4  Rich.  68) 431 

v.   Wainwright   (14  Pa.   St.    171) 235 

McDonald  v.  Askew  (29  Cal.  200) 77 

v.    Bayne    Ind.)    (16    N.    E.    Rep.    795 

[1888])    544 

v.  B.  R.,  etc.,  Co.  (13  Cal.  220) 75,76,77 

v.  Lannen  (Mont.)   (47  Pac.  Rep.  648), 

McGee  Irr.  D.  Co.  v.  Hudson  (Tex.  Sup.) 

(22  S.  W.   Rep.  967) 74 

McGettigan    v.    Potts    (Pa.    Sup.)    (24   Atl. 

Rep.    193) 330 

McGuire    v.    Brown    (Cal.)    (39    Pac.    Rep. 

1060)    i 75 

v.  Grant  (i  Dutch.  (N.  J.)  356). 325,  327,  33Q 

Mclntosh  v.  Rankin  (Mo.  Sup.)   (35  S.  W. 

Rep.   995) 86 

Mclntyre  v.  Mich.  State  Ins.  Co.  (52  Mich. 

188)    „ 688 

Mclver  v.   Walker   (9  Cranch   173) 574,598 

McKay  v.   Huggan   (24  Nova  Scotia  514) ..  390 

McKee  v.  Griffin  (23  La.  Ann.  417) 35 

McKelway    v.     Seymour     (29     N.     J.     Law 

321)    736 

McKenzie  v.   Gilmore  (Cal.)    (33  Pac.   Rep. 

262)    703 

• v.   Miss.   Boom  Co.    (29  Minn.  288) 85 

McKeon  v.  See  (51  N.  Y.  300) 214 

McKey   v.    Hyde    Park    (10    Sup.    Ct.    Rep. 

512)     612,  703 

McKilvert's  Trusts  (Eng.)   (7  Ch.   170) 556 

McKinley    v.    Chosen    Freeholders    (29    N. 

J.   Eq.    171) 1720 

McKinney    v,    McKinney    (8    Ohio    St.    423 

[1858])    604 

v.    Settles    (31    Mo.    541) 46 

-v.   Smith   (21   Cal.   374) 75 

McLaughlin  v.   Bishop    (35   N.   J.    Law   512 

[1872])     542,  549 

McManus  v.  Carmichael  (3  la.  i) 231,237 

McMaugh  v.   Burke  (12  R.  I.  499) 329,330 

McNab    v.    Robertson    (Eng.)    (App.    Cas. 

129   [1896]) 261 

McNamara  v.  Seaton  (32  111.  500  [1876]) 


McNeely  v.    Langan    (22   Ohio   St.   32).. 514, 


546 


McRoberts  v.  McArthur  (Minn.)  (34 

Rep.   903) 

McVey  v.    Durkin    (Pa.)    (20  Atl.   Rep.   541 

[1890])    624 

McWilliams    v.    Samuel    (Mo.)    (27    S.    W. 

Rep.   550) 502 

Meacham  v.  Bunting  (111.)   (41   N.  E.  Rep. 

175)    516 

Mead  v.   Parker   (115   Mass.   413    [1874]), 

Meade  v.  Jones  (Tex.)  (35  S.  W.  Rep.  '310)'  590 
• v.  Leon,  etc.,  Co.  (Tex.)  (22  S  W. 

Rep.  298) 586 

Meagher  v.  Hardenbrook  (Mont.)  (28  Pac. 

Rep.  451) 76 

Mears  r.  Dole  (135  Mass.  508  [1883]) 272 

Medway  Nav.  Co.  v.  Romney  (9  C.  B.  N. 

S.  575) 62 

Mee  v.  Benedict  (Mich.)  (57  N.  W.  Rep. 

175)  546 

Meister  r.  Lang  (28  111.  App.  624) 181 

Meixell  v.  Morga.n  (Pa.)  (24  Atl.  Rep.  216)  178 

Melvin  r.  Proprietors,  etc.  (5  Met.  15) 598 

Memphis,  etc.,  Ry.  Co.  v.  Humphreys 

(Ark.)  (48  S.  W.  Rep.  86  [1898]) 751 

Mendel  v.  Whiting  (111.)  (31  N.  E.  Rep. 

431)  597 

Menzies  v.  Beedlebane  (2  Wils.  235) 109 

Mercantile  Trust  Co.  v.  Atlantic  &  Pac.  R. 

Co.  (C.  C.)  (63  Fed.  Rep.  910) 731 

Meredith  v.  Frank  (Ohio)  (47  N.  E.  Rep. 

656)   711,  715 


Merrick    Water    Co.    v.    City    of    Brooklyn 


§§ 


(Sup.)   (53  N.   Y.   Supp     10  [1898]).... 254,  257 

Mernneld  v.   Worcester  (no  Mass.  219) 57 

Merritt  v.   Brinkerhoff   (17  Johns.    (N.   Y.) 

306)    in 

v.  Parker  (i  N.  J.  L.  460) 135 

Merwin  v.  Camp  (3  Conn.  35) 45 

—  v.    Wheeler    (41    Conn.    14) 373 

Metcalf  v.   McCutchen   (60  Miss.    145) 518 

Metropolitan  W.  S.  El.  R.  Co.  v.  Springer 

(49  N.  E.  Rep.  416,  171  111.   170  [1897])...  721 
Mexia    v.    Lewis    (Tex.)    (21    S.    W.    Rep. 

1016)    533 

Meydenbauer  v.   Stevens   (D.    C.)    (78  Fed. 

Rep.    787) 573,  579 

Meyer  v.   Covington   (Ky.)   (45  S.  W.   Rep. 

769  [1898]) 546 

v.    Harris    (N.   J.    Sup.)    (38   Atl.    Rep. 

690   [1897]) 88 

v.  Phillips  et  al.  (97  N.  Y.  485  [1884])..  243 

v.  Tacoma  Lt.   &  W.   Co.   (Wash.)    (35 

Pac.    Rep.    601) 257,259 

Meyers  v.   Hudson  Co.  E.  Co.   (N.  J.)    (37 

Atl.   Rep.  618) 812 

Michigan   Tel.    Co.   v.   Charlotte   (U.    S.    C. 

C.)    (93  Fed.   Rep.   11    [1899]) 869 

Mickel  v.  York  (66  111.  App.  464) 338,343 

Middlesex  Co.  v.   McCue  (149  Mass.   103)..  184 
Middlestadt     v.     Waupaca     S.     &     P.     Co. 

(Wis.)   (66  N.  W.  Rep.  713) 208 

Middleton  v.  Flat  River  B.   Co.    (27  Mich. 

533)    243 

v.    Pritchard    (4   111.    510) 431 

Midgett  v.  Twiford  (N.  C.)   (26  S.  E.  Rep. 

626)     615 

Miesen  v.  Canfield  (Minn.)  (67  N.  W.  Rep. 

632)    526 

Miles  v.   Barrows  (122  Mass.  579) 491 

v.    Sherwood    (Tex.)    (19    S.    W.    Rep. 

613)    630,  632 

Miller  v.   Craig  (83  Ky.  623) 590 

v.  Fawdrye  (Popham  163) 315 

v.  Goodwin  (8  Gray  (Mass.)  542) 44 

v.  Hare    (W.    Va.)    (28  S.    E.    Rep.    722 

[1897])    240 

v.  Hepburn   (8  Bush   (Ky.)  326) 387 

v.  Miller  (68  Pa.  St.  486) 48 

v.  Milwaukee  (14  Wis.  642) 134 

—  v.  Richards     (Ind.)     (38    N.     E.     Rep. 
854)    715 

v.  Vaughn  (8  Oreg.  333) 77 

v.  White  (Fla.)   (2  So.  Rep.  614  [1887])  577 

—  v.  Windsor  W.  Co.  (Pa.  Sup.)  (23  Atl. 
Rep.    1132)    104 

Millett  v.  Fowle  (8  Cush.  150  [1851]) 605 

v.  Lagomarsino  (Cal.)  (40  Pac.  Rep. 

25)  '. .  516 

Millington  v.  Richards  G.  Co.  (25  Gas  J. 

215) 264 

Mill  River  Co.  y.  Smith  (34  Conn.  462) 164 

Mills  v.  Cambridge  (117  Mass.  396) 242 

—  v.  Hall  (N.  Y.)   (9  Wend.  315) 86 

v.    Osawatomie    (Kan.)    (53    Pac.    Rep. 

470  [1898]) ..  664 

v.   Waltham   (126  Mass.  422) 62 

Mills  &  Allen  v.  Evans  (Iowa)    (69  N.  W. 

Rep.    1043) 381,  683 

Mills   Co.   v.    B.   &  M.    R.    R.    Co.    (47   la. 

66)    751 

Millvale    v.     Evergreen    R.     Co.     (131     Pa. 

St.)   793 

Milwaukee    Gas    Light    Co.    v.    Gamecock 

(23   Wis.    144) 240,242 

Milwaukeef  etc.,    R.     Co.    v.    Strange    (63 

Wis.    178) 741 

Mima  Queer  v.   Hepburn   (7  Cranch  290)..  620 
Mine   Hill,   etc.,    R.    Co.   v.    Lippincott   (86 

Pa.    St.   486) : 749 

Miner  v.  N.  Y.  Cent.,  etc.,  R.  Co.  (123  N. 

Y.    242) 736 

Mineral   Springs  Mfg.    Co.  v.   McCarty   (67 

Conn.   279) 545 

Minneapolis   W.    Co.   v,   Amer.    S.    Co.    (53 

Fed.    Rep.    970) 51 


xlviii 


TABLE    OF  CASES. 


Minneapolis  W.  Ry.  Co.  v.  Minneapolis  & 

St.  L.  Ry.  Co.  (Minn.)  (59  N.  W.  Rep.  983)   665 
Minor  v.   Kirkland   (Tex.)    (20  S.   W.   Rep. 

M9mton'  'v.  '  Steel'e  '  (Mo'.' '  Sup'.) '  '(28  '  S."  W.'  5 

Rep.  746) 378,  380 

Mission  v.  Cronin  (N.  Y.  App.)  (38  N.  E. 

Rep.  964) 521,  522 

Mississippi  Cent.  R.  Co.  v.  Mason  (51 

Miss.  234) 115 

Mississippi  Mills  Co.  v.  Smith  (Miss.)  (n 

So.  Rep.  26) 212,216,223 

Missouri,  K.  &  T.  Ry.  Co.  v.  Bishop  (Tex.) 

(34    S.    W.    Rep.    323) i...... •_:•••,   178 

T.     CO.     V. 


Missouri,   etc.,    Ry. 


Graham    (Tex.) 


(33  S.  W.  Rep.  576) 194 

Missouri  Pacific  Ry.  Co.  v.  Keys  (Kan. 

Sup.)  (40  Pac.  Rep.  275) . . : 105,  173 

v.  Renfro  (Kan.)  (34  Pac.  Rep.  802)..  192 

Mitchell  v.  Bain  (Ind.)  (42  N.  E.  Rep. 

230)  1 10,  12.20,  178 

v.  Bass  (33  Tex.  259) 707 

v.  Bellingsley  (17  Ala.  391) 320 

v.  Haws  (20  How.  29-32) 687 

v.  Mayor  of  Rome  (49  Ga.  19) 326 

v.  New  York,  L.  E.  &  W.  R.  R.  Co. 

(36  Hun  177  [1885]) 178,179 

Mixer  v.  Reed  (25  Vt.  254) 261 

Mizell  -v.  McGowan  (N.  C.)  (26  S.  E.  Rep. 

783)  184 

— — v.  Ruffin  (N.  C.)  (18  S.  E.  Rep.  72)..-.  559 
Moberly,  City  of,  v.  McShane  (7  Am.  & 

Eng.  Corp.  Cases  405) 704 

Moffitt  v.  Lytle  (Pa.  Sup.)  (30  Atl.  Rep. 


Mohr  v.  Gault  (10  Wis.  513) 103 

Molony  v.  Dixbn  (65  Iowa  136) 337 

Monongahela  Nav.  Co.  v.  Coon  (6  Pa.  St. 

379)  62,  85 

v.  United  States  (13  S.  Ct.  622). 242,  .-45,  873 

Monroe  v.  Conn.  R.  L.  Co.  (N.  H.)  (39 

Atl.  Rep.  1019  [1897]) 88 

v.  Ivie  (2  Utah  535) 75 

Monroe,  City  of,  v.  Police  Jury  (La )  (17 

So.  Rep.  498) 445 

Montana  Cent.  Ry.  Co.  v.  Helena  &  R.  M. 

R.  Co.  (Mont.)  (12  Pac.  Rep.  916  [1887])  75* 
Montana  Co.  v.  Gehring  (C.  C.  A.)  (75 

Fed.  Rep.  384) 217 

Monteleone  v.  Harding  (La.)  (23  So.  Rep. 

900)  336 

Montezuma  v.  Minor  (73  Ga.  484) 86 

Montgomery  v.  Hinds  (Ind.  Sup.)  (33  N. 

E.  Rep.  uoo) 606 

Moody  v.  Palmer  (50  Cal.  31  [1875]). .. -447,  449 
Moon  v.  Chicago,  etc.,  Ry.  Co.  (la.)  (39 


N.  W.  Rep.  390  [1888]). 
Moore  v.  Chicago,  B.  &  ( 


173 

.  Ry.  Co.  (Iowa) 

(39  N.  W.  Rep.  390  [1888]) 173 

v.  Clear  Lake  W.  (Cal.)  (5  Pac.  Rep. 

494  [1885]) ioi 

—  z-.  Hinkle  (Ind.)  (50  N.  E.  Rep.  822 

[1898]) 521 

v.  Los  Angeles  (72  Cal.  287) 144 

v.  McCown  (Tex.  Civ.  App.)  (20  S. 

W.  Rep.  1112) 530 

r.  Owen  (46  S.  W.  Rep.  1005) 343 

v.  Sanborne  (2  Mich.  519) 233 

v.  Shoemaker  (D.  C.  App.)  (25  Wash. 

L.  Rep.  72,  29  Chic.  Leg.  News  207).  .337,  339 
v.  Webb  (Eng.)  (i  C.  B.  N.  S.  673).  •  222 

—  v.  Wilder  (Vt.)  (28  Atl.  Rep.  320) 75 

Moorhead  v.  Little  Miami  R.  Co.  (17  Ohio 


340)    747 

More  v.   Massini   (37  Cal.  432) 407 

Moreland  v.   Moreland   (Pa.)    (15  Atl.   Rep. 


655  [1888])  526 

Morgan  v.  Bowes  (Sup.)  (17  N.  Y.  Supp. 

22) 322 

v.  Danbury  (67  Conn.  484) 210,216 

v.  King  (18  Barb.  (N.  Y.)  227,  35  N. 

Y.  454) 232,  234,  240,  243 

v.  Moore  (3  Gray  319  [1855])... 447 


v.  Railroad  Co.   (96 


716). 


703 


Morris   v.    Beardsley    (Conn.)    (8  Atl.    Rep. 

139    [1887]) 383 

v.    Brook    (Del.    C.    P.)    (53   Am.    Rep. 

215)    431 

v.   Callanan   (105  Mass.   129  [1870]).  .521,  623: 

v.   Graham   (Wash.)    (47  Pac.   Rep.  752)  240 

v.   Hill    (i    Mich.   202) 401 

v.  Receivers  of  R.  Co.  (C.  C.)  (65  Fed. 

Rep.    584) 120 

1>.  Ward  (36  N.  Y.  587,  592) 572 

Morris  &   E.   R.   Co.  v.   Hud.  Tun.   R.   Co. 

(10   C.    E.   Greene  384) 353 

Morrisey    v.     Chicago,    B.     &    Q.     R.     Co 

(Neb.)   (56  N.  W.   Rep.  946) 119,1723 

Morrison  v.  First  Nat'l   Bk.   (Me.)    (33  Atl. 

Rep.    782) 407 

v.   Seamons   (183  Pa.   St.  74) 579 

Morrow  v.  Willard  (30  Vt.  118  [1857]) .  .447,  548 
Morse  v,  Copeland  (Mass.)  (2  Gray  302), 

643,  662,  669 
v.    Rollins    (121    Pa.    St.    537    [1888]), 

v.    Stockman    (Wis.)    (40    N.    W.    Rep.'    ? 

679    [1889]) 546 

Mosier  v.  Caldwell   (7  Nev.  363) 252 

Moss  v.  Rose  (Oreg.)  (41  Pac.  Rep.  666). 76,  77 
Motley  v.  Sargent  (119  Mass.  231  [1875]), 

Mott  v.  Cherryvale  W.   &  Mfg.   Co.   (Kan.)' 

(28  Pac.   Rep.  989) 148 

v.   Clayton    (N.    Y.)    (9  App.    Div.    181, 

41  N.  Y.  Supp.  87) 44i,45i 

v.  Mott  (68  N.  Y.  246  [1877])-... 448,  450,453 

v.   Oppenheimer   (N.    Y.    App.)    (31    N. 

E.    Rep.    1097) 337 

v.   Palmer   (i    N.   Y.   564) 8 

Mowry  v.  Providence  (10  R.  I.  52) 702 

Moyer    v.    Preston    (Wyo.)    (44    Pac.    Rep. 

Movie  v.  Connolly  (50  Cal.  295  [1875]).  .494,  500 
Muhlker  v.  Ruppert  (124  N.  Y.  627  [1891])  573 
Muir  v.  Meredith  (Cal.)  (22  Pac.  Rep. 

1080)    544 

Mullaney   v.    Duffy    (111.    Sup.)    (33    N.    E. 

Rep.    750) 620 

Mullen  v.  Penobscot  Log-driving  Co.  (Me.) 

54 


(38  Atl.    Rep.   557    [1897]). 

v.  St.  John  (57  N.  Y.  • 

Mulry  v.   Norton   (100 


v.  St.  John  (57  N.  Y.   «fer)....._..A.i.i..  331 
Mumford   v.    Whiting    (N.    Y.)  "(15  Wend. 


424  [1885]), 
376,  378,  380,  383 


380)  663,  712,  719,  740 

Mundell  v.  Hugh  (2  Gill  &  J.  193) 352 

Mundy  v.  N.  Y.,  etc.,  R.  Co.  (N.  Y.)  (75 

Hun  479) 87 

Municipality  No.  2  v.  Cotton  Press  (18  La. 

122)  379,  381,  382- 

Munson  v.  Hungerford  (6  Barb.  N.  Y.  265)  232 
Murchie  v.  Black  (19  C.  B.  N.  S.  190)....  325 
Murdock  v.  Gilchrist  (52  N.  Y.  246) 44 

—  v.    Prospect    Park    R.    Co.    (73    N.    Y. 

Murphy"^-." Bul'lodc    (R.    L)    (37   Ati. '  Rep. 

v.  Doyle  (33  N.  W.  Rep.  220,  37  Minn. 

113)  526 

v.  Paynter  (i  Dill.  333) 48 

v.  Reynaud  (Tex.  Civ.  App.)  (21  S.  W. 

Rep.  991) 5i6 

v.  Wilmington  (5  Del.  Ch.  281).  ..1720,  205 

Murry  v.  Sermon  (i  Hawks'  R.  56) 424 

Muse  v.  Richards  (Miss.)  (12  So.  Rep. 

821)  551 

Muskett  v.  Hill  (5  Bing.  N.  C.  694) 667 

Musser  v.  Fairmont,  etc.,  Str.  R.  Co.  (7 

Amer.  Law  Reg.  284) 797 

Mutual  B.  &  L.  Assn.  v.  Wyeth  (Ala.)  (17 

So.  Rep.  45) 554 

Muzzey  v.  Davis  (54  Me.  361) 706 

Myer  v.  Whittaker  (N.  Y.)  (55  How.  Pr. 

576)  164 

Myers  v.  Schemp  (67  111.  469) 8 

v.  Ladd  (26  111.  414) 571.573 

v.  Nelson  (Cal.)  (44  Pac.  Rep.  801)....  190 


TABLE   OF  CASES. 


xlix 


Myers   v.    Phila.,   J.    &    C.    Pass.    Ry.    Co. 
(Com.  PI.)   (12  Montg.  Co.  Law  Rep.  46)    57 


N. 


Nally  v.  Penn.  R.  Co.   (117  Pa.  117) 447 

Napier  v.  Bulwinkle   (S.   C.)    (5  Rich.  311), 

326,  327 

v.   Simpson    (i   Tenn.   453) 518 

Narron    v.    Wilmington    &   W.    R.    Co     (N 

C.)   (29  S.  E.  Rep.  356  [1898]) 685 

Nash    v.    El    Dorado    Co.    (Cal.)    (24    Fed. 

Rep.    252) 688 

Nashville,    etc.,    Ry.    Co.   v.    Hammond    (15 

So.    Rep.    935) 535 

v.    Reynolds    (Tenn.)    (48    S.    W.    Rep. 

258    [1898]) 685 

National  Bell  Teleph.  Co.  v.  Baker  (Eng.) 

(2    Ch.    186    [1893]) I 292,296 

National  Com.  Bank  v.  Gray  (Sup.)   (24  N. 

Y.    Supp.    997) 342 

Nat.    Life  Ins.   Co.   v.   Lee   (Minn.)    (77   N. 

343 


W.   Rep.  794  [1899]) 

Nat.    Tube    Wks.    Co.    v. 


Chamberlain    (5 


Dak.    54) 142 

National  W.  W.  Co.  v.  Kansas  City  (C.  C.) 

(65   Fed.    Rep.   691) 147,661,848 

Natoma  W.  &  Min.  Co.  v.  Hancock  (Cal.) 


75 


(35   Pac.    Rep    334)   ..... 
-  v.  McCoy  (23  Cal.  491)  ..................     75 

Naylor  v.   Cox   (Mo.  Sup.)   (21  S.  W.   Rep. 


'3  °' 


N5  C.  &  'S.'  *C.'  Co.  v       idd  (37  Cal.  282)  .. 
Neal   v.    Hopkins    (Md.)    (39  Atl.    Rep.  322 
[1898])    .............................  451,  452,  709 

-  v.   Pittsburg   &   C.    R.    Co.    (31    Pa.    St. 

19)    .......................................     353 

Neary  v.  Phila.,  etc.,  R.  Co.  (Del.)  (9  Atl. 

Rep.    405    [1887])  ...........................      5 

Nebraska  v.  Iowa  (12  Sup.  Ct.  Rep.  396), 

Nebraska  Ry.  Co.  v.  Culver  (Nev.)  (52  N.' 
W.  Rep.  886)  ..............................  536 

Nebraska  Teleph.  Co.  v.  N.  Y.  Gas  Light 
Co.,  27  Neb.  284)  ..........................  828 

-  v.    York    Gas    &    Elec.    Co.    (17    Neb. 
284    [1889])  ..................................  295 

Needles  v.  Smith  (U.  S.  C.  C.  A.)  (87  Fed. 

Rep.  316   [1898])  ............................ 

Negus   v.    Becker    (Sup.)    (22   N.    Y.   Supp. 

986)    ........................................  340 

Neilson  v.  Grignon  (Wis.)   (55  N.  W.  Rep. 

890)    ........................................  523 

Nellis  v.   Munson   (N.   Y.)    (15   N.   E.   Rep. 

739    [1888])  ..................................  847 

Nelson  v.   Abernethy  (Miss.)    (21   So.   Rep. 

150)    ........................................  5540 

•  -  v.  Butterfield  (21  Me.  220)  .............     421 

•  -  v.    Nelson    (Mass.)    (3   Gray  85)  ........  667 

Nemasket    Mills    v.    Taunton    (Mass.)     (44 

N.  E.   Rep.  609)  ..........  ..................     57 

Ne-Pee-Nauk  Club  v.  Wilson  (Wis.)  (71 

N.    W.    Rep.   661)..  ....................  1720,421 

Nettleton  v.  Sikes  (Mass.)   (8  Met.  34)  .....  667 

Nevada  Ditch  Co.  v.  Bennett  (Oreg.)  (45 

Pac.    Rep.    472)  ...........................  75,77 

Nevada  Water  Co.  v.  Powell  (34  Cal.  109)..     75 
Nevins  v.   Peoria  (41  111.  502)  ...............  180 

New  Albany  v.  Lines  (Ind.  App.)  (51  N. 

E.    Rep.   346   [1898])  ........................  215 

New  Albany,  City  of,  v.  Slider  (Ind.  App.) 

(52  N.  E.  Rep.  626  [1899])  .................  303 

New  Albany,  etc.,  R.  Co.  v.  Peterson  (14 

Ind.    112)  ............................  .......  255 

Newark  v.  Newark  W.  Co.  (4  Ohio  N.  P. 

341    [1897])  ..................................  151 

New  Brighton,  etc.,  R.  Co.  v.  Pittsburg, 

etc.,  R.   Co.    (105   Pa.   St.   13)  ..............  751 

Newcastle,'  etc.,  R.  Co.  v.  Peru,  etc.,  R. 

Co.    (3    Ind.   464)  ...........................  745 

Newell  v.  Leathers  (La.)  (23  So.  Rep.  243 

[1897])  ...............................  ....:.  383 


Newhall    v.    Ireson    (Mass.)    (8    Cush.    595 

Newhoff  v.'  Mayo'  (N!  '  j.'  'c'h.')'  '(36 

265)  7I2 

New  Jersey,  etc.,  R.  Co.  v.  Van  Syckle  (37 

N.  J.  Law  496) 74I 

New  Jersey  Z.  &  I.  Co.  v.  Morris  C.'& 

B.  Co.  (N.  Y.)  (15  Atl.  Rep.  227) 424 

Newkirk  v.  Sabler  (N.  Y.)  (9  Barb.  655)..  315 
Newland  v.  Hudson  R.  Co.  (Sup.)  (16  N. 

Y.  Supp.  654) 85,86 

New  London  W.  Bd.  v.  Perry  (69  Conn. 

461)  83 

New  Orleans  v.  United  States  (10  Pet. 

(U.  S.)  662) 703,708 

New  Orleans  &  N.  E,  R.  Co.  v.  McEwen 

&  Murray  (22  So.  Rep.  675) 121 

New  Orleans  Water  Co.  v.  Rivers  (115  U. 

S.  674) !47 

Newport  v.  Commonwealth  (Ky.)  (50  S.  W. 

Rep.  845  [1899]) 871 

Newson  v.  Anderson  (2  Ired.  42) 352 

News  River  Co.  v.  Johnson  (2  El.  &  El. 

445)  252,  254 

Newton  v.  Louisville  &  N.  R.  Co.  (Ala.) 

(19  So.  Rep.  19) 544 

New  York  v.  Bailey  (N.  Y.)  (2  Den. 

433)  87 

v.  New  York  Cent.,  etc.,  R.  Co.  (Sup.) 

(23  N.  Y.  Supp.  562) ...441 

v.  Speelman  (Ind.  App.)  (40  N.  E. 

Rep.  541) 136,  1720,  173 

v.  Stuyvesant  (17  N.  Y.  34) 702 

N.  Y.  Cent.  &  H.  R.  R.  Co.  v.  Aldridge 

(Sup.)  (16  N.  Y.  Supp.  674) 413 

N.  Y.  C.  &  St.  L.  R.  Co.  v.  Hamlet  Hay 

Co.    (Ind.)    (47   N.    E.    Rep.    1060   [1897]), 

N.    Y.    Mail    &    Newspaper  Transp.    Co.   v'. 

Shea  (Sup.)  (5!  N.  Y.  sSupp.  563  [1898]).  877 
N.  Y.,  etc.,  R.  Co.  v.  N.  Y.,  etc.,  R.  Co.  ' 

(N.  Y.)  (u  Abb.  N.  Cas.  386) 751 

N.  Y.,  etc.,  R.  Co.  v.  South  Amboy  (N.  J. 

Sup.)  (30  Atl.  Rep.  628) 709 

N.  Y.,  O.  &  W.  R.  Co.  v.  Western  U.  T. 

Co.  (36  Hun  205  [1885]) 5 

Co.  v.  '  -"A"-""! 


N.    Y.    Rubber 


othery    (Sup.)    (23 


N.  Y.  Supp.  247) 54,  104,  115 

N.    Y.    State,   etc.,    R.   Co.    v.    Cent.    Onion 

Tel.  Co.  (N.  Y.)   (21  Hun  261) 818 

N.  Y.,  etc.,  Teleph.  Co.  v.  East  Orange  Tp. 

(42  N.  J.  Eq.  490) 811 

N.    Y.    &    T.    Land    Co.    v.    Gardner    (Tex. 

Civ.  Ap£.)   (25  S.  W.  Rep.  737) 467,  492 

v.    Thomson    (Tex.    Sup.)     (17    S.    W. 

Rep.    920) 600 

—  v.  Votaw  (14  Sup.   Ct.   Rep.   i) 571 

N.  Y.  U.  T.   Co.  v.   Cuppy  (26  Kan.  754)..  117 
Nichlas  v.   Keller   (Sup.)    (41    N.    Y.    Supp. 

172)    714 

Nicholasville  W.  Co.  v.  Board  (Ky.)   (36  S. 

W.   Rep.   549) 148 

Nichols    v,    Lantz    (Colo.    App.)     (47    Pac. 

Rep.    70) 76 

v.   Marsland   (L.   R.    10  Exch.   255) 272 

v.     Peck     (Conn.)     (39    Atl.     Rep.    803 

[1898])    713,  716 

Nicld  v.  London,  etc.,  R.   Co.   (L.   R.)   (10 

Exch.     4) 134 

Niles  v.    Cedar   Point    Club    (U.    S.    C.    C.) 

(85  Fed.   Rep.  45   [1898]) 234,410,421 

Nippoit    v.    Kammon    (Mich.)    (40    N.    W. 

Rep.    266    [1889]) 554 

Nivette  v.    New    Orleans,   etc.,    R.    Co.    (42 

La.    Ann.    1153) 794 

Nolan  v.  New  Britain  (Conn.)  (38  Atl.  Rep. 

703    [1897]) 204,  205,  209,  212 

Nolon    v.    Harned    (N.    Y.)    (13   App.    Div. 

155)    SOT 

Noonan  v.  Albany  (79  N.  Y.  470) 184 

v.   Lee  (2  Black  504) 613 

Norbury  v.  Kitchin   (7  L.  T.   N.  S.  685) 63 

Norfolk   &  W.    R.   Co.  v.    Carter   (Va.)    (22 

S.  E.   Rep.  517) 114,  120 


TABLE   OF  CASES. 


§§     I 


Northeastern    R.    Co.    v.    Payne    (S.    C.)    (8 

Rich.    177) 753.  795 

Northern   Pac.    Ry.    Co.   v.   Doherty   (Wis.)' 

(75   N.   W.   Rep.    1079) 745,  752 

— _ V    Scott,   etc.,   Co.    (Minn.)    (75   N.   VV. 

Rep.    737) 613 

Northern  Pine-land  Co.  v.  Bigelow  (84  Wis. 

157)     3/8,  383,  409 

North   Point   C.    Irr.    Co.   v.   Utah   &   S.   L. 

Canal  Co.   (52  Pac.  Rep.   168) 75 

North    Powder    Mill     Co.     v.     Caughanour 

(Oreg.)    (54   Pac.    Rep.   223   [1898]) 75 

Northumberland    Coal    Co.    v.    Clement    (95 

Pa.    St.    126) 628 

North  Vernon  v.  Voegler  (103  Ind.  316) 189 

Norton    v.    Elwert    (Oreg.)    (41    Pac.    Rep. 

926)    336 

v.  Scholefield  (9  M.  &  W.  665) 202,269 

Norvell   v.   Thompson    (S.    C.)    (2   Hill  470)  352 
Norwich    G.    Co.    v.    Norwich    G.    Co.    (25 

Conn.  24) 846 

Novotny    v.    Danforth    (S.    D.)    (68    N.    W. 

Rep.   749)    322,323,549,600 

Nowlin   v.    Whippel    (79  Ala.    481) 666 

Noyes   v.    Board   of   Sup.    (la.)    (73    N.    W. 

Rep.     480) 421,  424 

v.    Collins   (la.)    (61    N.   W.    Rep.   250), 

390,  421,  424 

v.   Ward    (19   Conn.   250) 706 

Nunamaker  v.   Columbia  W.-p.   Co.   (S.   C.) 

(25  S.  E.  Rep.  75i) 662 

Nunnelly  v.  Southern  Iron  Co.  (Tenn.)   (29 

S.   W.   Rep.   361) 212,712 

Nuttal  v.    Bracewell    (L.    R.   2   Ex.    i) 61 

Nutter   v.    Gallagher    (Ore.)    (24   Pac.    Rep. 

Nye°  J/  AHter  '(Mo/  Sup.)'  '('30" S.'  W."Rep.  ^ 
186)    52i 


O. 


Oakes    v.    De    Lancey    (N.    Y.    App.)    (30 

N.   E.   Rep.   974) 407,  4" 

Oakland  v.   Oakland  W.    F.    Co.    (Cal.)    (50 

Pac.    Rep.  277) 406,  409 

Oakley  v.  Anderson  (93  N.  C.  108) 475 

Obernalta  v.   Edgar   (44  N.  W.   Rep.  82)...  517 
Obert  v.  Dunn  (Mo.)   (41  S.  W.  Rep.  901), 

323,  328,-333 
O'Boyle    ?s    McHugh    (Minn.)    (69    N.    W. 

Rep.    37) 516 

O'Brien   v.   Flynn    (Mass.)    (33  N.   E.    Rep. 

500)    613,  616 

v.   King  (N.  J.)   (7  Atl.   Rep.  33  [1887])  445 

Ocean    Grove   C.    M.   Assn.   v.   AsbUry   Pk. 

Comm'rs   (40  N.   J.    Eq.   447) 257 

O'Connell  v.   Bryant  (121  Mass.  557  [1877])  447 
Odd    Fellows'    Hall   v.    Hegele    (Oreg.)    (32 

Pac.    Rep.    679) 339 

Odell    v.     Nyack    Waterworks    Co.     (Sup.) 

(36  N.   Y.   Supp.  206) 274 

O'Dell  v.  Swaggerty  (Tenn.)  (42  S.  W.  Rep. 

175    [1897]) 583 

O'Donnell  v.  Kelsey  (10  N.  Y.  412) 383 

Ogden    City  v.    Grossman    (Utah)    (53    Pac. 

Rep.    985    [1898]) 833,834 

Ogilvie  v.    Copeland    (111.    Sup.)    (33  N.    E. 

Rep.    1085)    573 

O'Hara  v.  O'Brien  (Cal.)  (40  Pac.  Rep.  423)  631 

-v.  Stark  (90  Pa.   St.  477) 2 

O'Herrin  v.  Brooks  (Miss.)  (6  So.  Rep.  844) 

590,  600 
Ohio  &  B.   S.   R.   Co.  v.  Wooten  (Ky.)   (46 

S.    W.    Rep.    681) 521 

Ohio  &  M.  R.   Co.  v.  Thillman   (111.  Sup.) 

(32  N.  E.  Rep.  529) 112,  114,  115,  117,  120 

v.    Webb    (111.    Sup.)    (32    N.    E.    Rep. 

Ohio  River'R.''c'o.'^.''Sch'on''(W.''Va.')''(ii  ™ 

S.    E.    Rep.    18) 544 

Okeson  v.  Paterson  (29  Pa.  St.  22  [1857])..  678 
Olive  v.  State  (86  Ala.  88) 241,  243 


p.    309    [1897]) 501 

laer  v.  Philadelphia  Co.   (31   Fed.   Rep. 


Oliver   v.    Brown    (Me.)    (15    Atl.    Rep.    599 

[1888]) ....TV.  612 

v.    Olmstead    (Mich.)    (70   N.   W.    Rep. 

1036)    164 

Olney  v.  Fenner  (2  R.  I.  211,  214) 407 

Olson    v.    Huntamer    (S.    D.)     (61    N.    W. 

Rep.    479) 421,  424 

v.  Keith  (Mass.)   (39  N.  E.  Rep.  410)..  573 

Olwine   v.    Holman    (23    Pa.    St.   279) 529 

Omaha     &     R.     V.     Ry.     Co.     v.     Richards 

(Neb.)    (57  N.   W.   Rep.   739) 681 

Omensetter   v.    Kemper    (6    Pa.    Super.    Ct. 

Re 
Oms 

O'Neill'  'v.'  Bree'se'  '(Super.)'  '('23'  N'.'  Y!  'Supp. 

526)    307 

Onstott   v.    Murray    (22   Iowa   457) 703 

Opdyke  v.    Stephens    (4  Dutch.   89) 542,612 

Ophir    S.    Mfg.    Co.    v.    Carpenter    (4    Nev. 

O'Reiley'  v.'  McCnesn'e'y"(N.'  Y'.)"(3  'Lan'sl 

278)  222 

Orena  v.  Santa  Barbara  (Cal.)  (28  Pac. 

Rep.  268) 630 

Ormered  v.  N.  Y.,  etc.,  Co.  (13  Fed.  Rep. 

370)  241 

Ormorod  v.  Todmorden  Mill  Co.  (Eng.) 

(n  Q.  B.  Div.  155) 61 

Orr  v.  Quimby  (54  N.  H.  590  [1874]). .  -353,  354 
Orriel  v.  Ft.  Worth  (Tex.)  (32  S.  W.  Rep. 

443)  7o6 

Ortman  v.  Dixon  (13  Cal.  33) 75 

Orvis  v.  Elmira,.  etc.,  R.  Co.  (Sup.)  (45 

N.  Y.  Supp.  367) 114,  117 

Osborn  v.  Wise  (Eng.)  (7  Cor.  &  P.  761)  715 
Osgood  v.  El  Dorado  W.  &  M.  Co.  (56 

Cal.  571)  73,75 

Oswald  v.  Grenet  (22  Tex.  94) 703 

Oswego  v.  Canal  Co.  (6  N.  Y.  257) 706 

Ottawa  Gas  Lt.  Co.  v.  Graham  (28  111.  74)  264 

Otto  v.  Specht  (n  Cent.  Rep.  244) 8 

Ousby  v.  Jones  (73  N.  Y.  621) 572 

Overton  v.  Davisson  (i  Gratt.  211) 521 

Owen  i\  Bartholomew  (Mass.)  (9 -Pick.  520 

[1830])  597 

v.  Henderson  (Wash.)  (47  Pac.  Rep. 

215)  554 

Owens  v.  Lancaster  (Pa.)  (37  Atl.  Rep. 

858)     201,  207,  212 

Owensboro,  etc.,  R.  Co.  v.  Barker  (Ky.) 
(37  S.  W.  Rep.  848) 544,745 

Owings  v.  Freeman  (Minn.)  (51  N.  W. 
Rep.  476  [1892]) 633 


P. 

Pac.  Mut.  Tel.  Co.' v.  Chicago,  etc.,  Bridge 

Co.    (36  Kan.   113) , 824 

Pac.  Post.  Tel.  Cab.  Co.  v.  Irvine  (49  Fed. 

Rep.    113) 815 

V.    West.    Un.    Tel.    Co.    (Cir.    Ct.)    (50 

Fed.    Rep.   493) 819 

Packscher  v.  Fuller  (Wash.)    (33  Pac.   Rep. 

875) 631 

Paducah,    City    of,    v.    Allen    (Ky.)    (49    S. 

W.    Rep.    343) 303 

Paine  v.  Chandler  (134  N.  Y.  385) 260 

v.   Consumers  Co.   (C.   C.  A.)    (71   Fed. 

Rep.    626) 447 

v.  Edsell  (19  Pa.   St.   180) 47 

v.  Upton  (87  N.  Y.  327  [1882]).. 552,  588,  590 

v.    Woods    (108    Mass.    160,    172,    173), 

167,  169,  407,  421,  422 
Paine  Lumb.  Co.  v.  United  States   (C.  C.) 

(55  Fed.  Rep.  854) 373,374 

Palatine  v.   Krueger    (111.)    (12   N.   E.    Rep. 

Palestine7  w! '  &'  P." '  Co.'  'v. '  Palestine '  (Tex. 

Civ.   App.)    (41   S.   W.   Rep.  659) v... 148 

Palmer  v.   Angel    (Sup.)    (23   N.  Y.    Supp. 

397)    75 


TABLE   OF  CASES. 


li 


Palmer  v.  Clark  (106  Mass.  373) 477 

v.    Cuyahoga    Co.    (U.    S.)    (3    McLean 

226)    245 

v.   Evangelico  Soc.    (Mass.)    (43   N.   E. 

Rep.    1028) 340 

v.   Farrell    (Pa.)    (18   Atl.    Rep.    761)....  557 

v.   Fleshees   (i    Sid.    167) 325 

v.    Larchmont    Elec.    Co.     (158    N.    Y. 

235)    794 

v.   Mulligan   (N.   Y.)    (3  Cai.  307) 1720 

v.  Palmer  (N.  Y.  App.)  (44  N.  E.  Rep. 

966)    715 

Palms  v.  Shawans  Co.  (61  Wis.  211  [1884])  586 
Panton  v.  Holland  (17  Johns.  92.).  .323,  327,  331 
Para  Rubber  Shoe  Co.  v.  Boston  (139 

Mass.    155) 60 

Paris  v.   Allred    (Tex.)    (43   S.    W.    Rep.   62 

[1897])    204 

Parish  v.  Jones   (Mass.)    (8   Cush.    184) 6 

v.    Kaspere    (109   Ind.    585) 662 

Parke  v.    Kilham   (8  Cal.   77) 75 

Parker   v.    Atchison    (Kan.)    (48   Pac.    Rep. 

631)    132,  134 

v.   Boston  R.   Co.   (3  Cush.   114) 255 

v.    Co.   of  N.    (150   Mass.   489) 352 

v.   Foote   (19  Wend.   309) 674,676 

v.   Larsen    (86  Cal.   236) 274 

v.    Norfolk    &   C.    R.    Co.    (N.    C.)    (25 

S.   E.   Rep.   722) 194 

v.    Salmons    (Ga.)    (28   S.    E.    Rep.    681 

[1897])    516,  611 

Parkersburg  Ind.   Co.  v.   Schultz   (W.  Va.) 

(27    S.    E.    Rep.    255) 522 

Parks  v.  Barnett  (Ala.)  (17  So.  Rep.  354)..  516 

v.    Loomis    (6    Gray    467) 573,598 

Parks  C.  &  M.  Co.  v.  Hoyt  (57  Cal.  44)....     77 

Parsons   i>.   Trustees    (42   Ga.    529) 706 

Partridge  v.  Scott   (3  Mee.   &  W.  220) 326 

Pasley    v.    Richardson    (N.    C.)    (26    S.    E. 

Rep.    32) 523 

Patch  v.  White   (117  U.   S.  210) 552 

Patrick  v.    Spradlin   (Ky.)    (42   S.   W.    Rep. 

919   [1897])    558 

Patten  v.   Findley   (Sup.)    (18  N.   Y.   Supp. 

683)     498 

Patterson   v.    Hubbard    (30   111.    201) 19 

v.    M'Causland    (3    Eland's    Ch.    Repts. 

69  [1841])    580 

v.  Pease    (5    Ohio    119) 45 

Patterson,  etc.,  R.  Co.  v.  Patterson  (24  N. 

J.    Eq.    158) 789 

Pattison  v.   Dryer   (Mich.)   57   N.   W.    Rep. 

814)    528 

Paul  v.  Carver  (26  Pa.  St.  223) 446,447,449 

Pawlet,    Town    of,    v.     Clark     (U.     S.)     (9 

Cranch    292) 703 

Paxton  v.   Yazoo  &  M.   V.   R.   Co.    (Miss.) 

(24    So.    Rep.    536    [1899]) 685,731 

Payne    v.    Crawford    (Ala.)     (14    So.     Rep. 

854)    ' 625 

v.  Kansas   City,   etc.,   R.    Co.    (112  Mo. 

6)    85,  112,  117 

Peabody  Hts.  Co.  v.'Sadtler  (63  Md.  533)..  451 
• v.  Westerly  W.-w.  Co.  (R.  I.)  (37  Atl. 

Rep.  807)    146 

Pearne  v.   Coal   Creek  Min.   &  Manfg.   Co. 

(Tenn.)    (18  S.  W.  Rep.  402) 715 

Pearsall  v.  Post  (N.  Y.)  (20  Wend.  425)....  702 
• v.  Westcott  (51  N.  Y.  Supp.  663 

[1898])     338,  501 

Pearson    v.    Barringer    (N.    C.)    (13    S.    E. 

Rep.  942)    462 

v.  Dryden    (Oreg.)    (43   Pac.   Rep.    166), 

502,  503 

Peart  v.  Meeker  (La.)  (12  So.  Rep.  490) 241 

Peay   v.    Salt    Lake    City    (Utah)    (40    Pac. 

Rep.    206)    52,662 

Peck   v.    Denniston    (121    Mass.    17    [1876]), 

447,  448,  451 
Pellishier   v.    Corker    (Cal.)    (37    Pac.    Rep. 

465)    713 

Pendleton  v.  Snyder  (Tex.)  (24  S.  W.  Rep. 

363)    521 

v.  Stuart  (Va.)   (5  Call,  i) 590 


Pennington    v.    Brinsop    Hall    Co.    (Eng.) 

(5   Ch.   Div.   769) 216,210 

Penn.   Coal  Co.  v.  Ayres   (N.  J.)    (14  Atl.) 

Rep.    901    [1888])    447 

v.   Sanderson   (113  Pa.   St.   126) 184,269 

Penn.  R.  Co.  v.  Breckenridge  (38  Atl.  Rep. 

74o)     535 

v.  Bruner  (55   Pa.   St.  318) 753 

v.  Miller  (112  Pa.   St.  34) 63 

Penn.   Teleph.   S.   Co.   v.   Wilkesbarre   &   S. 

W.   Ry.   Co.   (u   Pa.  Co.   Ct.   Rep.  417)...  296 
Pensacola   Gas   Co.   v.    Pebley    (5   So.    Rep. 

593    [1889]) 264 

Pensacola  Tel.   Co.  v.   West.   Un.   Tel.   Co. 

(96   U.    S.    i). 819,821 

People  v.  Auditor-General   (7  Mich.  96) 573 

v.  Barnard  (no  N.  Y.  548) 787,788 

v.  Board     (111.)     (17    N.     E.     Rep.     147 

[1888])    407 

v.  Bd.  of  Assess.   (39  N.   Y.  81) 847 

v.  Bd.  of  R.  Commrs.   (52  N.  Y.  Supp. 

908)    756,  798 

v.  Bd.    Supervisors    (125    111.    9    [1888]), 

373,  403,  406,  407,  447,  451 

v.  Borda    (Cal.)    (38   Pac.   Rep.    mo)...  208 

v.  Broadway  R.    Co.    (126  N.   Y.  29)...  787 

v.  Brooklyn,  etc.,  R.   Co.    (89  N.  Y.  75 

[1882])     752 

v.  Canal  Apprs.    (33  N.   Y.  461) 413 

v.  Cassity    (46    N.    Y.    46) 5 

v.  Chicago,   etc.,    R.    Co.    (118   111.    113)  789 

v.  Chic.   W.   Div.    R.    Co.    (118  111.    113)  787 

v.  Commrs.    of    Texas    (101    N.    Y.    322 

[1885])     5 

v.  Elk.    R.    M.    &    L.    Co.    (Cal.)    (40 

Pac.    Rep.    486) 208 

v.  General    Electric    Ry.    Co.    (172    111. 

129  [1898])    797 

v.  Gold  Run,  etc.,  Co.   (66  Col.    138)...  242 

v.   Jessup    (Sup.)    (51    N.   Y.    Supp.   228 

[1898])    238,  240,  242 

v.  Jones  (112  N.  Y.  597  [1889]) 573,589 

v.   Kellogg   (22   N.   Y.   Supp.  490) 705 

v.   Kirk   (111.)    (45   N.    E.    Rep.   830)....  421 

-v.  Lambier  (N.  Y.)  (5  Denio  9) 379 

• v.   Lewis    (86  Mich.   273) 304 

v.    Mariposa   Co.    (31    Cal.    196   [1866]), 

v.  McCune  (Utah)   (46  Pac.  Rep.  658),' 

205,  207 
v.    N.    Y.    G.    Co.    (N.    Y.)    (64    Barb. 

—  v. '  'O'Brien*  '(i  1 1  '  N.' '  Y."  '  j  '.'. '. '. '. '. .'  *'.*'.'! .'  84! 
v.  Osborn  (Sup.)  (32  N.  Y.  Supp. 

358)  683 

v.  Park  &  O.  N.  Co.  (Cal.)  (18  Pac. 

Rep.  141  [1888]) 797 

v.  Reed  (81  Cal.  70) 706 

?•.  Revell  (111.  C.  C.)  (29  Chic.  Leg. 

News  345) 241 ,  242 

v.  Rogers  (12  Col.  278) 222 

v.  San  Luis  Obispo  (Cal.)  (48  Pac. 

Rep.  723) 209 

v.  Silberwood  (Mich.)  (67  N.  W.  Rep. 

1087)  421 

v.  Sperry  (Cal.)  (48  Pac.  Rep.  723) 709 

v.  Squire  (N.  Y.)  (14  N.  E.  Rep.  820 

[1888])  833 

v.  Storms  (97  N.  Y.  364  [1884]) 554 

-v.  Underbill  (23  N.  Y.  Supp.  388)....  706 

v.  Utica  Cement  Co.  (22  111.  App.  159)  90, 

v.  Warner  (Mich.)  (74  N.  W.  Rep. 

705  [1898]) 410,  432 

v.  Woodruff  (Sup.)  (51  N.  Y.  Supp. 

515  [1898]) .241,  383 

People  ex  rel.  Ackerman  v.  True  (N.  Y. 

Sup.  Ct.  [1900]) 308 

People  ex  rel.  3d  Ave.  v.  Newton  (112  N. 

Y.  404) 846 

People's  Ice  Co.  v.  Steamer  Excelsior  (44 

Mich.  229) 164,  169,  319 

People's  Pass.  R.  Co.  v.  Baldwin  (Pa.)  (37 

Leg.  Int.  424) 747 

Peoria  v.  Ballance  (61  111.  App.  369) 241 


lii 


TABLE   OF  CASES 


Peoria  W.   Co.  v.   Cent.   Ry.   and  P.   &  P. 

Hts.  Ry.  (111.  Courts  1900) 293 

Perkins  v.  Adams  (Mo.  Sup.)  (33  S.  W. 

Rep.  778) 414,  43i 

v.  Blood  (36  Vt.  273) 530 

v.  Bulkley  (111.  Sup.)  (46  N.  E.  Rep. 

Perry     v.     Lawson     (Ala.)     (20     So.     Rep. 
61 1)    530 

v.  Scott  (N.  C.)  (14  S.  E.  Rep.  294)..  555 

Peter  v.  Caswell  (38  Ohio  St.  518) 107 

Peters  v.  Gracia  (Cal.)  (42  Pac.  Rep.  455)  580 

—  v.  Little  (Ga.)  (22  S.  E.  Rep.  44) 716 

Petersen  v.  Santa  Rosa  (Cal.)  (51  Pac.  Rep. 

557  [1897!)  204,206,209,210,219,223 

Peterson  v.  Skjelver  (Neb.)  (62  N.  W.  Rep. 

43)  577,  579 

Petrie  v.  Hamilton  College  (Sup.)  (40  N. 

Y.  Supp.  781) 62 

Pettibone  v.  Smith  (37  Mich.  579) 101 

Peyton  v.  Mayor  of  London  (9  B.  &  C. 

v.  Shaw  (15  111.  App.  192) 703 

Pfaff  v.  Terre  Haute,  etc.,  R.  Co.  (106 

Ind.  144) 731 

Pfeiffer  v.  Brown  (Pa.  Sup.)  (30  Atl.  Rep. 

844)  216,  220 

v.  Grossman  (15  111.  53) 352 

v.  Lindsay  (Tex.)  (i  S.  W.  Rep.  265)  555 

v.  Matthews  (Mass.)  (37  N.  E.  Rep. 

e  7 1 ) \ 343 

Pharis  v.'  Jones  (Mo.  Sup.)  (26  S.  W.  Rep. 

1032)  517 

Philadelphia  v.  Scott  (81  Pa.  St.  85  [1886])  453 
Phila.,  etc.,  R.  Co.  v.  Davis  (Md.)  (u  Atl. 

Rep.  822  [1888]) 114,118 

v.  Maryland  (U.  S.)  (10  How.  393)...  5 

v.  Phila.,  etc.,  Ry.  Co.  (6  Pa.  Dist. 

Rep.  269,  487) 7 1 7,  759 

v.  Pottsville  W.  Co.  (Com.  PI.)  (18  Pa. 

Co.  Ct.  Rep.  501) 57,60,62,63 

v.  Williams  (54  Pa.  St.  103) 747 

v.  Wilmington  City  Ry.  Co.  (38  Atl. 

Rep.  1067) 876 

Phila.  Pass.  R.  Co.  v.  Phila.  (Pa.)  (10 

Phila.  70) 846 

Phillips  v.  Philadelphia  &  R.  T.  R.  Co. 

(Pa.)  (39  Atl.  Rep.  298  [1898]) 764 

v.  Ritter  (N.  Y.)  (20  App.  Div.  34) 587 

v.  Sherman  (64  Me.  171) 169 

v.  Waterhouse  (69  la.  199) 183,  184 

Phillipson  v.  Gibbon  (L.  R.  6  Ch.  428) 529 

Phinney  v.  Campbell  (Wash.)  (47  Pac.  Rep. 

502)  467 

• v.  Watts  (Mass.)  (9  Gray  269) 422 

Phipps  v.  State  (Ind.)  (7  Blackf.  312) 703 

Phoenix  Water  Co.  v.  Fletcher  (23  Cal.  • 

482)  75 

Pierce  v.  Brew  (43  Vt.  295) 44 

24  Vt.  ii" 


v.   Brown   (24 


165  [185*]).... 557,  576, 


v.  Dyer  (109  Mass.  374) 325 

it.  Kinny  (N.  Y.)  (59  Barb.  56) 133 

Pierpont  v.  Loveless  (72  N.  Y.  211) 241 

Pierson  v.  Armstrong  (i  Iowa  292) 46 

—  v.  Conley  (Mich.)  (55  N.  W.  Rep.  387)  516 
Pile  v  Pedrick  (Pa.  Sup.)  (31  Atl.  Rep. 

647)  336,  337 

Pillsbury  v.  Morris  (Minn.)  (56  N.  W. 

Rep.  170) 343 

Pine  v.  New  York  (C.  C.)  (76  Fed.  Rep. 

418)  54,  58,  104 

N.  W. 


Pinkum   v.    Eau    Claire    (Wis.)    (51 

Rep.   550)    

Piper  v.   Connolly   (108  111.  646   [1884]), 
407,  4i3,  SSo,  582, 


613,  616 
Pitcher  v.  Dove  (99  Ind.   175)  ...............  499 

Pitney  v.  Heusted  (Sup.)  (40  N.  Y.  Supp. 

407)    ........................................  447 

Pittsburg,  etc.,  R.  Co.  v.  Birmingham  (51 

Pa.    St.    41)  .................................  788 

-  v.   Gilleland    (56   Pa.    St.  445)  ...........     90 

-  v.    Point   Bridge   Co.    (Pa.)    (22   Pittsb. 

L.  J.   N.   S.  367)  ........................  720,784 

Pixley  v.  Clark  (35  N.  Y.  520)  ..............     90 


Rep.   365,    170   111.    513), 
v.  Norfolk,   etc.,   R.   Co. 


§§ 
Platt   v.    Bente   (N.   J.)    (10  Atl.    Rep.   283 

[1887])  . ......:  ss? 

v.  Johnson  (N.  Y.)   (15  Johns.  213).. 83,  in 

Platte  Val.   Irr.   Co.  v.   Buckers  (Colo.)   (53 

Pac.    Rep.    334    [1898]) 108 

Pleas  v.   Thomas   (Miss.)    (22   So.   Rep.  820 

[1897])    715 

Plummer  v.  Gloversville  Elec.  Co.   (N.  Y.) 

(20  App.  Div.  527  [1897]) 817 

Pocantico  W.-w.   Co.  v.  Bird  (N.  Y.  App.) 

(29  N.   E.    Rep.   246) 143 

Pollitt  v.  Long  (N.  Y.)  (58  Barb.  20) m 

Pollock     v.     Cleveland     Shipbuilding     Co. 

(Sup.)    (47  N.   E.   Rep.  582) 238,244 

Polly   v.    Saratoga    &   W.    R.    Co.    (9    Barb. 

449)    353,  755 

Poison   v.    Ingram    (22   S.    C.    541) 642 

Pomeroy  v.   Mills  (3  Vt.  279) 705 

Pomroy  v.    Granger    (R.    I.)    (29  Atl.    Rep. 

690)    32 1 ,  334 

Pond  v.  Minnesota  I.  Co.  (C.  C.)  (58  Fed. 

Rep.    448) 410 

Ponet  v.   Wills   (Cal.)    (48  Pac.   Rep.  483)..  611 

Pope  v.  Kinman  (54  Cal.  3) 71 

Porter  v.  Carpenter  (Fla.)  (21  So.  Rep.  788)  703 

v.   Durham    (74  N.   C.   767) 101,271 

v.  Pittsburg  Steel  Co.  (122  U.  S.  267)..      8 

Port  Huron  v.  Chadwick  (52  Mich.  320) 705 

Portis  v.   Hill   (14  Tex.  69) 530 

Port  Jervis  W.   Co.  v.   Port  Jervis   (N.   Y. 

App.)    (45  N.   E.   Rep.  388) 148 

Portland,    etc.,    R.    Co.    v.    York    Co.     (65 

Me.   293) 752 

Post  v.  Pearsall  (N.  Y.)  (22  Wend.  425). 702,  704 
Postal  Tel.  Cable  Co.  v.  Eaton  (49  N.  E. 

815 

Va.  920)..  818 
v.     Norwalk,     etc.,     R.     Co.     (87     Va. 

349)    825 

Potomac    Steamboat    Co.    v.    Upper    P.    L. 

Co.   (109  U.   S.  672) 53 

Potter  v.   Froment   (47  Cal.    165) 222 

v.   Ind.,   etc.,   R.   Co.    (95   Mich.  389), 

Potts  v.  Gilbert  (3  Wash.  C.  C.  475).. W  687 
Pottstown  Gas.  Co.  v.  Murphy  (39  Pa.  St. 

257)  264 

Poughkeepsie  G.  Co.  v.  Citizens'  G.  Co. 

(27  N.  Y.  Super.  Ct.  214) 844 

Power  v.  Harlow  (57  Mich,  in) 2 

Powers  v.  Dennison  (30  Vt.  752) 8 

v.  St.  Louis  Ry.  Co.  (71  Mo.  App.  540 

[1897])  105 

Prairie  State  v.  Sharp  (67  111.  App.  477)..  223 
Pratt  v.  Brown  (Mich.)  (64  N.  W.  Rep. 

v.   Lamson    (Mass.)    (2  Allen  284).. 406,  431 

v.   Woodward   (32  Cal.  227) 603 

Prefontaine     v.      McMicken     (Wash.)      (36 

Pac.    Rep.    1048) 343 

Prentice  v.  Duluth  S.  &  F.  Co.  (C.  C.  A.) 

(58  Fed.  Rep.  437) 410 

Presnell  v.  Garrison  (N.  C.)  (29  S.  E.  Rep. 

839    [1898]) 495 

v.  Headley    (Mo.)    (43   S.    W.    Rep.   378 

[1897])    552 

Preston  v.  Bowman  (6  Wheat.  580  [1821]).  586 
Prewitt  v.  Graves  (Ky.)  (35  S.  W.  Rep. 

263)    677 

Price  v.  Case  (10  Conn.  375) 8 

v.    Church    (4   Ohio   515) 708 

v.  Hallett  (Mo.)   (38  S.   W.   Rep.  451), 

377,  380 

v.   Riverside  L.   &  I.   Co.    (56  Cal.  431)     73 

v.   Thompson   (48  Mo.  363) 702,708 

Priestly  v.  Johnson    (67   Mo.   632) 8 

Priewe  v.  Wis.,  St.  L.  Imp.  Co.  (Wis.)  (67 

N.   W.   Rep.   918) 54,424 

Prince  v.   Case   (10  Conn.  375) 8 

Prior  v.  Comstock  (17  R.  I.  i) 53 

Probett    v.    Jenkinson    (Mich.)    (63    N.    W. 

Rep.    648) 583 

Proctor  v.  Jennings   (6  Nev.  83) 75,  90 

v.  Lewiston    (25    111.    153) 703 


TABLE   OF  CASES. 


liii 


Prompelly  v.    Green   Bay   C.   Co.    (U.   S.) 


§§    . 


ipelly 

(13  Wall.  166) 143 

Proprietors  v.  Inhabitants  (Mass.)  (32  N. 

E.  Rep.  153) in 

v.  Nashua,  etc.,  R.  Co.  (104  Mass,  i)  754 

v.  Ransom  (14  Mass.  144) 573 

Proprietors  Me.  Wharf  v.  Proprietors  of 

C.    H.    Whf.    (27    Atl.    Rep.    93,    85    Me. 

175)  387 

Prouty  v.  Tilden  (164  111.  163) 445 

Providence  Bank  v.  Billings  (U.  S.)  (4  Pet. 

Providence  G.  Co.  v.  Thurber  (2  R.  I.  15), 

844,  847 
Provins   v.    Lovi    (Okl.)    (50    Pac.    Rep.    81 

[1891])    407 

Provolt   v.    Chicago,    etc.,    R.    Co.    (57    Mo. 

256)    74i 

Prudden  v,  Lindsley  (29  N.  J.  Eq.  615)...  704 
Pry  v.  Mankedic  (Pa.)  (34  Atl.  Rep.  46)...  703 
P.  S.  &  P.  R.  Co.  v.  Saco  (60  Me.  196)...  5 
Purington  v.  Northern  111.  R.  Co.  (46  111. 

297)    735 

Putnam  v.   Bond  (100  Mass.  58) 550,  551 

Pyle  v.  Richards   (17  Neb.   180) 1720 


Q. 

Buicksall  v.    Philadelphia   (177  Pa.  301) 709 
uigley  v.  Birdseye  (Mont.)   (28  Pac.  Rep. 

741)    57 

Quillen   v.    Betts    (Del.)    (39   Atl.    Rep.    595 
[1897])    3I2>  573.  588,  601 

Buincy  v.  Jones   (76  111.  231) 325 
uincy,   etc.,    R.    Co.    v.    Kellogg    (54   Mo. 

334)    752 

Quinn   v.    Chicago,    B.    &    Q.    Ry.    Co.    (63 

Iowa  510    [1884]) 269,272 

v.  Egleston    (108   111.    248    [1883]) 620 

Buinton  v.   Burton    (61   Iowa  471) 319 
uirk  v.  Falk  (47  Cal.  453) 77 


R. 

Railroad  v.  Goodwin   (in  111.  273) 6 

Railroad  Co.  v.   Carr   (38  Ohio  St.  448)....  106 
v.  Cleary  (17  Atl.  Rep.  468,  125  Pa.  St. 

442)    850 

v  Houghton   (126  111.   232) 535 

v.  Patch  (28  Kan.  470) 707 

v.   Schurmeir   (7  Wallace  272   [1868]), 

164,  378,  410 

v.    Ramsey    (53  Ark.   314) 414 

Rains  v.  Rains  (Ky.)  (20  S.  W.  Rep.   1099)  408 
Ramelli  v.   Irish   (Cal.)    (31    Pac.    Rep.  41), 

74.  105 
Ramgren    v.    McDermott    (Minn.)    (76    N. 

W.  Rep.  47) 243 

Ramsey   v.    Ogden    (Oreg.)    (31    Pac.    Rep. 


778)    .. 

Rand  v.  Cartwright  (Tex.)   (18  S.  W.  Rep. 
794) 


502 
587 


Randall   v.    Burk   Tp.    (S.    D.)    (70   N.    W. 

Rep.    837) 579 

—  v.  Sanderson  (in  Mass.  114  [1872])...  522 

Randolph  v.  Bloomfield  (77  la.  50) 223 

v.  Casey  (W.  Va.)  (27  S.  E.  Rep.  231)  688 

v.  Dobson  (Com.  PI.)  (u  Montg.  Co. 

Law  Reptr.  197) 202 

.Rapley  v.  Klugh  (S.  C.)  (18  S.  E.  Rep. 

680)  556 

Rapp  v.  City,  etc.,  R.  Co.  (12  Wkly.  L. 

Bull.  119) 790 

Rarick  v.  Smith  (Com.  PI.)  (17  Pa.  Co.  Ct. 

Rep.  627)  218 

Rasdell  v.  Shumway  (Kan.  App.)  (49  Pac. 

Rep.  631,  51  Pac.  Rep.  285  [1897]) 502,504 

Ratcliff  v.  Burleson  (Tex.)  (25  S.  W.  Rep. 

983,  26  S.  W.  Rep.  1003) 573,579»586,588 

Rath  v.  Zimbleman  (Neb.)  (68  N.  W.  Rep. 

488)  179 

Rathbun  v,  Geer  (64  Conn.  421) 499,  60 1 


Rawson  v.  Ward  (128  Mass.  552) 311 

Ray  v.  Pease  (Ga.)  (22  S.  E.  Rep. '190) 633 

Rayburn  v.    Winant  '(Ore.)    (18    Pac.    Rep. 

588    [1888])    408 

Raymond  v,  Coffey  (5  Ore.   132   [1873]), 

S3,  550,  571,  573.  588,  612 
(31  Pac.  Rep. 

537)  108 

Raynor  v.  Timerson  (N.  Y.)  (51  Barb. 

517)  499 

Razzo  v.  Varni  (Cal.)  (22  Pac.  Rep.  848)..  1720 
Reast  v.  Donald  (Tex.  Sup.)  (19  S.  W. 

Rep.  795)  612 

Redd  -v.  Murry  (Cal.)  (30  Pac.  Rep.  132)..  613 
Redfield  v.  Parks  (132  U.  S.  239  [1889]).  .533,  682 
Redlands  Water  Co.  v.  Redlands  (Cal.) 

(53  Pac.  Rep.  843  [1898]) 151 

Redmond  v.  Mullenax  (N.  C.)  (18  S.  E. 

Rep.  708) 618 

Red  River  R.  Mills  v.  Wright  (30  Minn. 

249)  208 

Reed  v.  Knights  (87  Me.  181) 587,603 

v.  McCourt  (35  N.  Y.  113,  41  N.  Y. 

435  [1869]) 449,  501 

v.  Phillips  (Tex.)  (33  S.  W.  Rep.  986)  597 

v.  Reed  (93  N.  C.  462  [1885]) 546 

v.  Spicer  (27  Cal.  57) 77 

v.  State  (108  N.  Y.  407  [1888]) 274 

Reformed  Church  v.  Schoolcraft  (65  N.  Y. 

134  [1875]) 687 

Regina  v.  Betts  (Eng.)  (44  Cox  (C.  C.)  211)  233 

v.  Met.  Bd.  Wks.  (3  B.  &  S.  710) 255 

v.  Patrie  (30  Eng.  Law  &  Eq.  207)....  706 

v.  United  Kingdom  Tel.  Co.  (9  Cox 

(C.  C.)  171) 812 

Reid  v.  Bd.  of  Ed.  of  Edina  (73  Mo.  295 

[1880])  706 

v.  Reid  (Cal.)  (44  Pac.  Rep.  564) 252 

Reimer  v.  Stuber  (20  Pa.  St.  458) 528,703 

Reiner  v.  Young  (N.  Y.)  (16  N.  E.  Rep. 

368  [1888]) 676 

Reinhar,t  v.  Mautasti  (61  L.  T.  N.  S.  328)  302 
Reisback  v.  Carson  (Wash.)  (13  Pac.  Rep. 

618  [1887])  551 

Reiter  v.  Mcjunkin  (Pa.  Sup.)  (33  Atl. 

Rep.  1012)  501 

Relyea  v.  Bacon  (34  Barb.  547) 314 

Remington  v.  Millerd  (i  R.  I.  93) 703 

Rend  v.  Venture  Oil  Co.  (Cir.  Ct.)  (48 

Fed.  Rep.  248) 284 

Renier  v.  Slater  (20  Pa.  St.  458) 688 

Reno  S.  M.  &  R.  v.  Stevenson  (Nev.)  (4 

Law  Rep.  60  [1889]) 72,75 

Requa  v.  Rochester  (45  N.  Y.  129) 706 

Rerick  v.  Kern  (Pa.)  (14  S.  &  R.  267) 662 

Resser  v.  Davis  (Iowa)  (69  N.  W.  Rep. 

524)  178 

Reusens  v.  Lawson  (Va.)  (21  S.  E.  Rep. 

347)  516,  628 

Rex  v.  Gunder  (2  Camp.  89) 237 

v.  Hudson  (2  Strange  909  [1732]) 701 

v.  Leake  (5  B.  &  Adolph.  469) 704,706 

v.  Lyon  (5  Dow.  &  Ry.  499) 706 

Reynolds  v.  Boston  Rub.  Co.  (Mass.)  (35 

N.  E.  Rep.  677) 542 

v.  Clark  (2  Ld.  Raym.  1399) 183 

Reysen  v.  Roote  (Wis.)  (66  N.  W.  Rep. 

599)  166 

Rhea  v.  Newport  Co.  (Cir.  Ct.)  (50  Fed. 

Rep.  16)  116 

Rhodes  v.  Otis  (33  Ala.  578) 234,666 

Ribordy  v.  Murray  (70  111.  App.  527  [1897])  178 

Rice  v.  Munroe  (36  Me.  309) 401 

v.  Ruddiman  (10  Mich.  $25) 424 

Rich  v.  Keshena  Imp.  Co.  (56  Wis.  287)...  87 
v.  Minneapolis  (37  Alb.  Law  Jour.  58 

Richard    v. ' '  Hupp' '  (Cal.)' '  (37    Pac'. ' '  Rep'. 

920)  675 

Richards  v.  Rose  (24  E.  L.  &  Eq.  406;  s.c., 

9  Exch.  218) 327 

Richardson  v.  Kier  (34  Cal.  63,  263;  37  Cal. 

263)  75,  85 

v.  Pavell  (Tex.)  (19  S.  W.  Rep.  262)..  559 


liv 


TABLE   OF  CASES. 


Richardson  v.  V.  C.  R.  Co.  (25  Vt.  465,  471)  327 

Richart  %   Scott   (Pa.)    (7  Watts  460) 327 

Richer  v.  Barry  (34  Me.  116) 545 

v.    Hubbard    (73    Me.    105) 518 

Richmond,  City  of,  v.  Test  (Ind.)  (48  N.  E. 

Rep.  610  [1897]) 205 

Richmond   Mfg.   Co.  v.  Atl.   De  Laine   Co. 

(10  R.  I.  106) 216 

Richmond,  etc.,  R.  Co.  v.  Durham  (104  N. 

C.    658)    741 

Richwine  v.  Jones    (Ind.)    (39   N.    E.    Rep. 

460)    590 

v.   Presby.    Ch.    (Ind.)    (34   N.   E.    Rep. 

737)    621 

Ricker  v.   Hubbard    (73   Me.    105) 518 

Riddle's    Ex'rs    v.    Delaware    County    (Pa. 

Sup.)   (27  Atl.   Rep.  569) "4 

Ridgeway  v.  Ludlow  (58  Ind.  248) 421 

Rieman   v.    Baltimore,   etc.,    Co.    (Md.)    (31 

Atl.   Rep.  444) 45i 

Rigby  v.   Bennett   (21   Ch.  D.  559;    s.c.,  40 

L.   T.   47) 325 

Rigdon  v.  Temple  W.-w.  Co.   (Tex.)   (32  S. 

W.  Rep.  828) 88,144 

Riggs  v.   Myers   (20  Mo.  439) S58 

v.    Riggs    (135    Mass.    240    [1883]) 408 

v.    Riley    (Ind.)    (15    N.    E.    Rep.    253 

[1888])    503 

•'  v.  Tacoma  Lt.  &  W.   Co.   (Wash.) 


•fffc 


(38   Pac.    Rep.    147) 104,  1720 

Riley  v.   Griffin   (16  Ga.    141) 518 

Rioux  v.    Cormier    (Wis.)    (44  N.   W.    Rep. 


654)  , 587,  590 

Riseden  v.  Harrison  (Tenn.)  (42  S.  W. 

Rep.  884) 631 

Risiem  v.  Brown  (Tex.)  (10  S.  W.  Rep. 

661)  662 

Ritchey  v.  Welsh  (Ind.)  (48  N.  E.  Rep. 

1031  [1898])  715 

Ritger  v.  Parker  (8  Cush.  145) 645 

Riverside  Water  Co.  v.  Sargent  (Cal.)  (44 

Pac.  Rep.  560) •:•••••• ••     75 


Roake  v.  Amer.  Tel.  Co.  (41-  N.  J.  Eq.  35), 

814, 


817 


Roanoke   I.    Co.    v.    Kansas   City,   etc.,    R. 

Co.  (Mo.  Sup.)  (17  S.  W.  Rep.  1000)....  650 

Roarty  v.  Mitchell  (7  Gray  243) 45 

Roath  v.  Driscoll  (20  Conn.  533) 262 

Robb  v.  Village  of  La  Grange  (111.  Sup.) 

(42  N.  E.  Rep.  77) 205 

Robbins  v.  Dewhurst  (C.  C.  A.)  (68  Fed. 

Rep.  336) 629 

Robert  v.  Powell  (52  N.  Y.  Supp.  918)....  306 
Roberts  v.  Baumgarten  (N.  Y.)  (18  N.  E. 

Rep.  96  [1889])  422 

v.  Brooks  (C.  C.)  (71  Fed.  Rep.  914)  ••  7« 

v.  Easton  (19  Ohio  St.  78) 7^9,797 

v.  Helms  (Tex.)  (20  S.  W.  Rep. 

1004)  572 

v.  Preston  (N.  C.)  (10  S.  E.  Rep.  •  983)  612 

v.  Sadler  (104  N.  Y.  229  [1887]) 442 

v.  West.  Un.  Tel.  Co.  (77  Wis.  589)...  826 

Robertson  v.  Commonwealth  (Ky.)  (40  S. 

W.  Rep.  920) 242 

v.  Mooney  (Tex.)  (21  S.  W.  Rep.  143)  572 

Robinson  v.  Allison  (Ala.)  (12  So.  Rep. 

382,  19  So.  Rep.  837) 5i6,547 

v.  Black  D.  C.  Co.  (57  Cal.  412) 217 

v.  Clapp  (65  Conn.  365) 308,314,341 

v.  Grave  (27  L.  T.  248,  affirming  29  L. 

'  v.    imperial    Silver    Mfg.    Co.    (5    Nev. 

44)  75,  77 

v.  Laurer  (Or.)  (40  Pac.  Rep.  1012). 573,  579 

v.  Stewart  (n  MacPh.  (Sc.)  189) 202 

Roby  v.  Yates  (Sup.)  (23  N.  Y.  Supp. 

1108)  •  • 754 

Rochester  Sav.  Assn.  v.  Gorman  (Sup.)  (47 

N.  Y.  Supp.  81  [1897])  442 

Rockland  W.  Co.  v.  Adams  (84  Me.  472)..-  151 

Rockwell  v.  Baldwin  (53  111.  19) •• •••  406 

Rocky  Mt.  Teleph.  Co.  v.  Salt  Lake  City 

Ry.    Co.    (Utah)    (3   Amer.    El.    Cas.    350, 

356)    285,831 


Roe   v.    Strong    (N.    Y.)    (14    N.    E.    Rep.     ' 

294    [1888])    623: 

Roecker  v.   Haperla   (Mo.)    (39  S.'  W.   Rep. 

454)    504 

Roeder  v.  Stein  (Nev.)  (42  Pac.  Rep.  867)  75 
Roehl  v.  Haumier  (Ind.)  (37  S.  W.  Rep. 

345    [1888]) 555 

Rogers  v.  Carrothers  (26  W.  Va.  238,  246)  485 
v.  Coal  R.  B.  &  D.  Co.  (W.  Va.)  (23 

S.  E.  Rep.  919) 85,  137 

v.     Gillinger     (Penn.)     (6    Amer.     Law 

Reg.  430   [1858]) 8 

v.    Concho    C.    Co.    (Tex.)    (38    S.    W. 

Rep.    656)    600 

v.  Mexis   (Tex.)   (36  S.  E.   Rep.  825)...  617 

v.  Taylor  (2  H.  &  M.  828) 334 

Rogerson  v.  Shepherd  (10  S.  E.  Rep.  632)..  715 

Rome  v.  Cabot  (28  Ga.  50) 142 

v.   Portsmouth  (56  N.   H.  291) 215 

Rome  G.  L.  Co.  v.  Meyerhardt  (61  Ga.  287)  844 
Rook  v.  Greenwalt  (Com.  PI.)  (17  Pa.  Co. 

Ct.   Rep.  642) 576 

Root   v.    Cincinnati    (la.)    (54   N.    W.    Rep. 

206)    467,  492,  573 

v.  Johnson  (26  Vt.  64  [1853]) 63,75,382 

Rose  v.  St.  Charles  (49  Mo.  509) 85 

Rosenberger   v.    Miller    (i    Mo.    App.    Rep. 

640)    706 

Ross  v.  Butler  (19  N.  J.   Eq.  294) 267 

v.    Faust    (54   Ind.    471) 421,423. 

v.   McCain   (Mo.)    (46  S.   W.    Rep.   955)  533 

Roswand  v.  Anderson  (33  Kan.  264) 8- 

Rotch  v.   Livingston   (Me.)  (40  Atl.  Rep.  426 

[1898])    716 

Rothery  v.   N.   Y.   Rubber  Co.    (N.   Y.)    (24 

Hun   172)    86 

Roushlange  v.  Chicago,  etc.,  R.  Co.  (Ind.) 

(17  N.   E.   Rep.   198   [1888]) 334 

Rowe    v.    Granite    Bdge.    Co.    (Mass.)     (21 

Pick.   344) 113 

Rowell  v.  Doyle   (131  Mass.  474) 165 

Rowland  v.  Miller  (Super.)  (18  N.  Y.  Supp. 

205)    633 

Roxbury  v.  Stoddard  (Mass.)  (7  Allen  158)  240 
Rucker  v.  Athens  Mfg.  Co.  (54  Ga.  84)....  85 
Rudel  v.  Los  Angeles  Co.  (50  Pac.  Rep. 

400)    136,  184 

Rugg  v.  Ward  (Vt.)  (23  Atl.  Rep.  726).... '631 
Rumsey  v.  New  York,  etc.,  R.  Co.  (N.  Y. 

App.)    (30  N.   E.    Rep.  654) 195 

v.    Railroad    Co.    (114   N.    Y.   423) 413 

Runion  v.  Alley  (Ky.)  (39  S.  W.  Rep.  849)  -406 
Rupert  v.  Penner  (Neb.)  (53  N.  W.  Rep. 

598)    555 

Rupley  v.  Welch  (23  Cal.  452) 77 

Russell  v.  Hubbard  (59  HI.  335) 666 

v.   State   (3  Coldw.   (Tenn.)   119) 703 

Rutherford    v.    Holly    (N.    Y.)    (n    N.    E. 

Rep.    818    [1887])    190 

v.  Taylor    (38    Mo.    415) 708 

Rutz   v.    Kehr    (111.    Sup.)    (29   N.    E.    Rep. 

553)     <.  378 

Ryan  v.  M.  V.  &  S.  I.  R.  Co.  (62  Miss.  162 

[1884])    681,  685 

v.  Wilson    (9   Mich.   262) 553 

Ryckman  v.  Gillis  (157  N.  Y.  68) 334 

Ryder  v.  Dodge   (N.   Y.)   (14  Wk.   Dig/  84 

[1882])    469 

v.  Loomis  (Mass.)   (36  N.  E.  Rep.  836)  552 

Rylands  v.   Fletcher   (L.   R.  3   H.    L.   Cas. 
330)    2?2 


Sabine  v.  Johnson  (35  Wis.  185)............    90 

Sachs  v.  Cordes  (u  Ohio  Cir.  Ct.  Rep. 

I45)  646,  711 

Saddler  v.  Lee  (66  Ga.  45) ••••  259 

Sadtler  v.  Peabody  Co.  (66  Md.  i  [1886])..  521 
Sage  v.  City  of  New  York  (41  N.  Y.  Supp. 

938,  154  N.  Y.  61  [1897]) 381,413 

—-».  Larson  (Minn.)  (71  N.  W.  Rep.  923)  521 


TABLE   OF  CASES. 


Iv 


v.  Morosick   (Minn.)    (71   N.   W.   Rep. 

930)    521 

Saint   v.    Guerrerio    (Colo.    Sup.)    (30   Pac. 

Saint  C.,  County  of,  v.  Livingston  (23  Wall. 

46)    377 

St.     Anthony     Falls     Water-power     Co.     v. 

Board    of    Water    Commrs.    (18    Sup.    Ct. 

Rep.  157,  158  U.  S.  349) 147,231,234,243 

St.  Bede  College  v.  Weber  (168  111.  324), 

497,  498,  500 
St.  Joseph  Co.  v.  South  Bend,  etc.,  R.  Co. 

(118   Ind.   68) 787 

St.  Julian  v.   Morgan,  etc.,  R.   Co.   (35  La. 

Ann.    924)    665 

St.    Helens    S.    Co.    v.    Tipping    (11    H.    L. 

Cas.    642)    214 

St.  Louis  v.  Gorman  (29  Mo.  593) 526 

v.  Heitzeberg  Packing  &  Provision  Co. 

(4*   S.    W.    Rep.    954) 3°4 

-u.  Mo.    Pac.    R.    Co.    (Mo.)    (21    S.   W. 

Rep.   202)    372,379,613 

v.  Rutz  (138  U.  S.  245) 431 

St.    Louis,    etc.,    Ry.    Co.   v.    Craigo    (Tex.) 

(31    S.    W.    Rep.   207) 192 

v.  Ellis    (58   111.   App.    no) 114 

v.  Harris    (47    Ark.    340) 115 

v.  Schneider  (30  Mo.  App.  820) 172 

St.   L.   University  v.   McCune   (28  Mo.  481)  518 
St.  Paul  v.  Chicago,  etc.,  Ry.   Co.   (Minn.) 

(63  N.  W.  Rep.  267) 756 

St.   Paul  &  D.   R.   Co.  v.   Duluth   (Minn.) 

(58  N.  W.   Rep.   159,  76  N.  W.  Rep.  35), 

178,  186,  536 
St.  Paul,  etc.,  R.  Co.  v.  Schurmeir  (7  Wall. 

(U.   S.)   272,  288) 238 

St.   Tammany  W.   W.  v.   New  Orleans  W. 

W.    (120  U.   S.   64) 147 

St.  Vincent  Asy.  v.  Troy  (76  N.  Y.  in) 721 

Salazer  v.   New  York  &  H.   R.   Co.   (49  N. 

Y.   Supp.   1065   [1897]) 72i 

Salter  v.  Jones  (39  N.  J.  Law  469) 447,449 

v.  Sample   (71   111.  430) 6 

San  Antonio,  etc.,  Ry.  Co.  v.  Mohl  (Tex.) 

(37  S.   W.    Rep.   22) 194 

Sanchez  v.   Grace  M.   E.   Church   (Cal.)   (46 

Pac.    Rep.    2) 545 

Sanders  v.   Logue   (12  S>W.   Rep.   722)....  687 
v.    Riedinger    (Sup.)    (43    N.    Y.    Supp. 

127);  s.c.,  51  N.  Y.  Supp.  937  [1898]). 522,  529 
Sanderson  v.  Penn.  Coal  (86  Pa.  St.  401) . .  202 
San  Diego  W.  Co.  v.  San  Diego  (Cal.)  (50 

Pac.   Rep.  633,  693  [1897]) 151 

Sands  v.  Manistee  River  Imp.  Co.   (123  U. 

S.   288) 245 

San  Francisco  v.  Calderwood  (91  Am.  Dec. 

542)    70S 

v.    Fulde   (37   Cal.   349) 687 

San    Luis    W.    Co.    v.    Estrada    (Cal.)    (48 

Pac.    Rep.    1075) 75 

Santa  Cruz  v.  Enright  (Cal.)  (30  Pac.  Rep. 

197)    '143 

Santa  Paula  Water-works  v.   Peralta   (Cal.) 

(45   Pac.   Rep.   168) 75 

Sargeant  v.  Bank  (12  How.  (U.  S.)  371) 701 

Sargent  v.  Adams  (3  Gray  72) 550,554 

Saunders  v.  Bluefield  W.  &  I.  Co.   (C.  C.) 

(58   Fed.    Rep.    133) 54,  58 

- — v.    New   York    Cent.    &   H.    R.    R.    Co. 

(N.  Y.  App.)   (38  N.  E.  Rep.  992) 381 

v.    Simpson    (Tenn.)    (37    S.    W.    Rep. 

195)    688 

Savannah,  etc.,   R.   Co.   v.   Lawton    (75   Ga. 

192)    131 

• v.    Shiels    (33    Ga.    601) 745 

Sawyer  v.   Kendall   (10  Cush.  241).. 573,687 


Saxton  v.  Hunt  (20  N.  J.  Law  487) 533 

Sayers  v.   Lyons   (no  Iowa  249  [1859]) 582 

Scates  v.  Henderson  (S.  C.)  (22  S.  E.  Rep. 


Schaeffer  'v. '  Mi'ehling'  '(Super.')  '  (34'  N'.'SY.'    33 

Supp.    693) 339 

Schaffer  v.  Hauser  (Mich.)  (70  N.  W.  Rep. 


136) 


533 


Schall  v.  Wins.  R.  R.  (35  Pa.  St.  191) 514 

Scheible  v.  Hart  (Ky.)  (12  S.  W.  Rep.  628)  504 

Schenely  v.  Com.   (36  Pa.  St.  29) 704 

Schilling  v.   Rominger  (4  Colo.  100) 75, 

Schlag  v.  Jones  (131  Pa.   St.  62) 51 

Schky    v.    Blum    (Tex.    Civ.    App.)    (22    S. 

W.    Rep.    264) 628 

Schlichter  v.    Phillipy   (67   Ind.   201) 136, 

Schlosser  v.  Crookshank  (Iowa)   (65  N.  W. 

Rep.    344) 410,  421 

Schoen  v.   Kansas  City  (65  Mo.  App.   134), 

101,  116 


School  Dist.   v.   Benson    (31    Me.  381) 514 

School    Dist.    of  Johnson    Co.    v.    Hart    (28 
Pac.    Rep.    741) 707 


School  Trustees  v.  Schroll  (120  111.  59,  509), 

235,  421 

Schrack  v.  Zubler  (34  Pa.  St.  38) 687 

Schriver  v,  Johnston   (N.  J.)    (71   Hun  232)  220 
Schultz  v.  Bower  (Minn.)    (66  N.  W.   Rep. 

139)    321,  330 

Schulz  v.    Sweeny    (19   Nev.   359) 75,76- 

Schuman  v.   Homestead  (i  Cent.   Rep.  914)  705 
Schuster  v.  Albrecht  (Wis.)  (73  N.  W.  Rep. 

990)    274 

Scott  v.  Chicago  (U.  S.)   (i  Biss.  510) 240 

v.   Des   Moines   (64  Iowa  438) 7O& 

v.  Means  &  Russell  Iron  Co.  (Ky.)  (19 

S.   W.    Rep.    189) 493,628 

v.    Weisburg    (Tex.    Civ.    App.)    (21    S. 

W.    Rep.    769) 633. 

v.  Wilson  (3  N.  H.  321) 243, 

Scranton   v.    Wheeler    (C.    C.   A.)    (57   Fed. 

Rep.    803) 412,  414, 

v. (Mich.)   (71   N.  W.   Rep.   1091)..  241 

1091)    241 

Scrivner  v.  Smith  (100  N.  Y.  471) 55. 

Scudder    v.     Detroit     (Mich.)     (75    N.     W. 

Rep.  286  [1898])    455 

Scull     v.     United     States     (98    U.     S.     410 

[1878])   546 

Seaman    v.    Hogeboom    (N.    Y.)    (21    Barb. 

298,   404)    603. 

v.   Lee   (N.   Y.)   (10  Hun  607) 20^ 

•[1888])    166- 

v.    Smith    (24   111.    521) 421 

Scarce  v.   Gardner   (Pa.)    (13  Atl.    Rep.  835 

[1888])    166 

Sears    v.    Stinson    (Wash.)    (29    Pac.    Rep. 

205)    590 

Sebastian  v.   Reeion  (Ky.)    (29  S.  W.   Rep. 

23)    49S 

Seebolt   v.    Shitler    (34   Pa.    St.    133) 708 

Seely  v,  Alden  (61  Pa.  St.  302) 214,222,223 

Sen    v.    Rehling    (Tex.)     (29    S.    W.    Rep. 

1114)    573 

Senior   v.    Anderson    (Cal.)    (47    Pac.    Rep. 

Settegast  "v." CharpioV '  (Tex*.)  " (28 '  s! '  W. 

Rep.  580)  622 

Settlers'  Ditch  Co.  v.  Hayes  (Cal.)  (22  Pac. 

Rep.  1152)  75 

Sewall  Cord.  Co.  v.  Bolton  W.  P.  Co. 

(Mass.)   (16  N.  E.  Rep.  782,  147  Mass.  61 

[1888])  376 

Sexton  v.  Hollis  (26  S.  E.  Rep.  236) 620 

Shaffer  v.  Hahn  (N.  C.)  (15  S.  E.  Rep. 

1033)  498 

Shahan  v.  Alabama  R.  Co.  (Ala.)  (22  So. 

Rep.  449,  509) 114,119,137 

Shane  v.  Kansas  City,  etc.,  R.  Co.  (71  Mo. 

237  [1879])  173,  176,  i77»  178,  192 

Sharp  v.  Blankenship  (Cal.)  (21  Pac.  Rep. 

842)  625 

Sharrock  v.  Ritter  (Tex.)  (45  S.  W.  Rep. 

156  [1898])  522 

Shaughnessey  v.  Leary  (Mass.)  (38  N.  E. 

Rep.  197) 681 

Shaw  v.  San  Diego  W.  Co.  (Cal.)  (50  Pac. 

Rep.  693) 151 

v.  Susq.  Boom  Co.  (125  Pa.  St.  324)....  85 

Sheffield  v.  Cent.  Un.  Tel.  Co.  (36  Fed. 

Rep.  164)  817,826 

Shelbyville  Tpk.  Co.  v.  Green  (99  Ind.  205)  134 


Ivi 


TABLE   OF  CASES. 


Sheldon  v.  Atkinson  (Kan.)   (16  Pac.  Rep. 

68   [1888])  ................................  499,  502 

Sheldon  Bank  v.  Royce  (Iowa)  (50  N.  W. 

Rep.    986)  ...........................  .  .......  338 

Shellhouse  v.  State  (Ind.)  (n  N.  E.  Rep. 

484   [1887])    .....  ........................  684,703 

Shenango,  etc.,  R.  Co.  v.  Braham  (79  Pa. 

St.  447)    ...  .................................  194 

Shepard  v.  Galveston,  H.  &  H.  R.  Co. 

(Tex.  Civ.  App.)  (22  S.  W.  Rep.  267)....  526 
Sheppard  v.  Galveston,  H.  &  H.  R.  Co. 

(Tex.)   (22  S.  W.  Rep.  267)  ................  533 

Sherman  v.  Fall  River  Co.  (Mass.)  (5  Allen 

213)    .....................................  264,  849 

-  v.    State   (Ala.)    (17  So.    Rep.    103)  .....  498 

-  v.  Williams  (ii3*Mass.  481)  .............  336 

Sherwood  v.   Commissioner  (Mich.)    (71   N. 

W.    Rep.    532)  ..............................  431 

-  v.  Seaman   (2  Bosw.   127   [1857])  ........  324 

-  v.    Whiting    (Conn.)    (8    Atl.    Rep.    80 
[1887])    .....................................  550 

Shields  v.  Arndt   (4  N.  J.   Eq.   246)  ........  1720 

-  w.'Horback  (Neb.)  (68  N.  W.  Rep.  524)  516 
524)    ........................................  516 

-  v.  Orr  Ex.  Ditch  Co.   (Nev.)    (47  Pac. 
Rep.    194)  ...................................  274 

Shiveley  v.   Cedar  Rapids,  etc.,   R.   Co.    (74 
la.    170)  .....................................  223 

Shively  v.   Hume   (10  Oreg.   76)  ..........  71,259 

Shoemaker   v.    Hatch    (13    Nev.    261)  ......  73,77 

Shook   v.    Colohan    (12   Oreg.    239)  ..........     71 

Shotwell  v.  Dodge  (8  Wash.  337)  ............     81 

Show  v.  Whitehead  (27  Ch.  Div.  588)....,.  272 

Shrieve  v.   Stokes  (8  B.  Mon.  453)  ......  527,333 


Shriver  v.  Shriver  (86  N.  Y.  57)  ............  529 

[1858])  .......  221 

Sibley  v.    Holden    (Mass.)    (10    Pick.    249), 


.  .      . 

Shutter  v.   City   (3   Phila.  228 


Sieber   v.    Frink    (7    Colo. 
Siebrecht  v.  East  River  Gas 


447. 


148)  ............  75, 

s  Co.  (47  N.  Y 
Supp.   262,   21   App.   Div.    10). 


76 


Silver  Creek  Cem.  Co.  v.  Union  Lime  & 
Cem.  Co.  (Ind.)  (35  N.  E.  Rep.  125)....  588 

Silverer  v.  Hansen  (Cal.)  (20  Pac.  Rep.  136 
[1889]) 494,  495 

Silver  Peak  Mines  v.  Valcada  (C.  C.)  (79 
Fed.  Rep.  886) .' no 

Simmons  v.  Cornell  (i  R.  I.  519) 706 

—  v.  Toledo  (s  Ohio  C.  Ct.   124) 790 

Simpkins'  Admr.  v.  Wells  (Ky.)   (42  S.  W. 

Rep.  348  [1897])  633 

Simpson  v.  Blaisdell  (85  Me.  199) 553 

v.  Downing  (23  Wend.  316) 532,  686 

v.  Stillwater  W.  Co.  (Minn.)  (64  N.  W. 

Rep.  1144) 119 

v.  Williams  (18  Nev.  432) 75 

v.  Wright  (21  111.  App.  67) 669 

Sims  v.  Smith  (7  Cal.  149) 86 

Sinai  v.  Railway  Co.  (71  Miss.  547) 192 

Single  v.  Schneider  (24  Wis.  299) 320 

Singleton  v.  Whitside  (5  Yerg.  (Tenn.)  36)  499 

Sioux  City  Co.  v.  Wilson  (50  la.  422) 735 

Sioux  City,  etc.,  R.  Co.  v.  Chicago,  etc.,  • 

R.  Co.  (27  Fed.  Rep.  770) 751,  754 

Siskiyou  Lumb.  &  Mer.  Co.  v.  Rostel 

(Cal.)  (53  Pac.  Rep.  1118) 303,308 

Sisson  v.  Cummings  (35  Hun  22,  106  N.  Y. 

56)    374 

—  v.  Hibbard  (75  N.  Y.  542) 8 

Sizer  v.    Quinlan    (Wis.)    (52   N.    W.    Rep. 

590) 711 

Sizor  v.  Logansport  (50  N.  E.  Rep.  377) 410 

Skinker  v.  Hagsma  (Mo.)   (12  S.  W.  Rep. 

659)    504 

Skinner   v.    Wilder    (38   Vt.    Rep.    115), 

313,  315,  316 
Skull   v.    Glenister    (16   C.    B.    (N.    S.)    81 

[1862])    681 

Slack    v.    Dawes    (Tex.)    (22    S.    W.    Rep. 

io53>  5540 

Slauson  v.  Goodrich  T.  Co.  (75  N.  E.  Rep. 

574)    613 

v.    Goodrich    Transp.    Co.     (Wis.)     (69 

N.  W.   Rep.  990) 374,407,421 


Sleeper  v.  Laconia  (60  N.  H.  201) 402^407 

Sleight  v.  Kingston  (N.  Y.)  (n  Hun  594)  208 
Sloan  v.  Thompson  (Tex.)  (23  S.  W.  Rep. 

613)  562 

Sloane  v.  Biemiller  (34  Ohio  State  492) 421 

Smeberg  v.  Cunningham  (Mich.)  (56  N. 

W.  Rep.  73) 517 

Smith  v.  Boone  (Tex.)  (19  S.  W.  Rep.  702), 

v.   Brooklyn   (Sup.)    (18  App.   Div. '340,' 

46  N.  Y.  Supp.  141) 62,254,255,272,275 

v.  Buffalo,  City  of  (35  N.  Y.  Supp,  635)  706 

v.  Bullock  (16  Vt.  592  [1844]) 469,501 

v.  Carlow  (Mich.)  (72  N,  W.  Rep.  22)..  243 

v.    Catlin    Ld.    &    Imp.    Co.    (Mo.)    (22 

S.    W.    Rep.    1083) 583 

v.  Corbit  (Cal.)  (48  Pac.  Rep.  725)... 61,  105 

v.   Cornett   (Ky.)    (38  S.  W.   Rep.  689), 

620*  625 
v.    Cranford    (Sup.)    (32    N.    Y.    Supp. 

375)    204 

v.   Fonds    (64   Miss.    551) 243 

v.  Greene  (Cal.)   (41  Pac.  Rep.  1022), 

76,  143,  662 
v.    Hall    (Iowa)    (72    N.    W.    Rep.    427 

[1897])    731 

v.  Hamilton  (20  Mich.  433  [1870]). .  .492,  500 

v.    Hawkins    (Cal,)    (52    Pac.    Rep.    139 

[1898]) 75 

v.   Headeick   (93  N.   C.   210) 584,625 

v.   Horn   (Pa.)    (31  Atl.   Rep.    1078) 572 

v.    Improvement    Co.    (Mo.    Sup.)    (22 

S.    W.    Rep.    1084) 587 

v.    Inhabitants   of   Lincoln    (Mass.)    (49 

N.   E.    Rep.   743   [1898]) 149 

v.  Johnson   (C.   C.)    (71   Fed.   Rep.  647)  383 

v.   Kinrick   (7  Com.   Bench  515) 515 

v.   Logan    (18  Nev.    149) 76,77 

v.    McConathy    (11    Mo.    518) 208 

v.    McDowell    (111.    Supp.)    (35    N.    E. 

Rep.    141) 442 

v.    Metropolitan    G.    Co.    (N.    Y.)     (12 

How.   Pr.   187) 846 

v.    Newell    (U.    S.)    (86    Fed.    Rep.    56 

[1898])  544,  55i,  601 

v.  North  Canyon  Water  Co.  (Utah)  (52 


77 


Pac.   Rep.   283   [i  „  _. 

v.  O'Hara  (43  Cal.  371)'. 75,77 

v.    Phila.,   etc.,    R.    Co.    (57   Fed.    Rep. 

903)    112 

v.   Public  Schools   (30  Mo.  294) 379 

v.  Rochester  (92  N.  Y.  463  [1883]), 

143,  401,  406,  413,  421 

v. (104   N.   Y.   674) 108,241 

v.  Slocum  (Mass.)  (9  Gray  36) 447,45^ 

v.    Smith    (34    Kans.    293) 704 

v.  State  (N.  Y.)  (3  Zab.  130,  712) 703 

v.  Sweat  (Me.)  (38  Atl.  Rep.  554  [1897])  555 

v.   Wagoner   (50   Wis.   155) 8 

v.    Youmans    (Wis.)    (70    N.    W.    Rep. 

1115)    407,  424 

v.   Young   (160  111.    163) 613 

Smitzgabel  v.    Morseldine   (Utah)    (16   Pac. 

Rep.   400    [1888])    504 

Snarr  v.  Granite  C.   &  S.   Co.   (i  Ont.   102)  323 

Snodgrass  v.  Smith  (13  Ind.  393  [1859]) 469 

Snow  v.  Mt.  Desert  I.   R.  E.   Co.   (84  Me. 

14)    406 

v.   Parsons   (28  Vt.  459) 222 

v.  Williams  (N.  Y.)  (16  Hun  458) 208 

Snyder  v.   Ft.  Madison  St.  Ry.  Co.   (Iowa) 

(75  N.  W.  Rep.  179  [1898]) 814 

v.   Morris   (Tex.)    (38  S.   W.    Rep.   219)  601 

Soape  v.   Doss   (Tex.)    (45  S.  W.   Rep.  387)  520 

Solliday  v.  Johnson   (38  Pa.   St.  380) 237 

Solomon   v.   Vintner   Co.    (4  H.    &   N.   585, 

598)     325,  327 

Sonder  v.  Jeffries  (8  N.  E.   Rep.  288) 518 

Sonnek  v.  Minnesota  Lake  (Minn.)   (52  N. 

W.    Rep.    961) 546 

Soukup  v.   Union   Inv.    Co.    (Iowa)    (51   N. 

W.    Rep.    167). « 5540 

Southern  M.  Co.  v.  Darnell  (Ga.)  (21  S.  E. 

Rep.   530    IQ4 


TABLE    OF  CASES. 


Ivii 


Southern    Minn.    R.    Co.    v.    Stoddard    (6 

Minn.  150)  -  .  745 

So.  Pac.  Railroad  Co.  v.  Dufour  (95  Cal. 

615)  254,  261 

So.  West.  R.  Co.  v.  So.  Tel.  Co.  (46  Ga. 

43)  812 

Spacy  v.  Evans  (Ind.)  (48  N.  E.  Rep.  355 

[1897])  467 

Spangler  v,  San  Francisco  (84  Cal.  17) 188 

Sparhawk  v.  Bullard  (Mass.)  (i  Mete.  95)  623 
Sparlin  v.  Gotcher  (Or.)  (31  Pac.  Rep. 

399)  83,  no 

Spear  v.  Cook  (8  Oreg.  380) 77 

Spencer  v.  Hartford,  etc.,  R.  Co.  (10  R.  1. 

v'.  Kilmer  '(N.'  Y.'  App.'  "(45  *N.'  E. '  Rep. 

865)  in 

Sperry  v.  Wesco  (Oreg.)  (38  Pac.  Rep. 

623)  598 

Spofford  v.  Bennett  (55  Tex.  293) 529 

Spohn  v.  JDives  (Pa.  Sup.)  (34  Atl.  Rep. 

192)  321 ,  327 

Spokane  Mill  Co.  v.  Bost  (C.  C.)  (50  Fed. 

Rep.  429)  243 

Spottiswood  v.  Morris  &  E.  R.  Co.  (N.  J.) 

(40  Atl.  Rep.  505  [1898]) 685 

Spradlin  v.  Spradlin  (Ky.)  (18  S.  W.  Rep. 

14)  533 

Sprague  v.  Worcester  (Mass.)  (13  Gray  193)  114 
Spratt  v.  Livingston  (Fla.)  (14  So.  Rep. 

160)  5i6 

Spring  v.  Hewston  (52  Cal.  442) 499 

Springfield  v.  Harris  (Mass.)  (4  Allen  496)  59 
Springfield  Water-works  Co.  v.  Jenkins  (i 

Mo.  App.  Rep.  699) 271 

Springfield,  West,  v.  W.  Springfield  Aq. 

Co.  (Mass.)  (44  N.  E.  Rep.  1063) 876 

Spring  Valley  Water-works  v.  San  Mateo 

Water-works    (28    Pac.    Rep.    447,    64    Cal. 

1 123)  143 

Stamford  v.  Felt  (Cal.)  (16  Pac.  Rep.  900 

[1888])  59 

• v.  Stamford  Horse  R.'  Co.  (56  Conn. 

381)  - 797 

Standart  v.  Round  Val.  W.  Co.  (77  Cal. 

Standen  v.  New  Rochelle  W.  Co.  (Sup.)  (36 
N.  Y.  Supp.  92) 62 

Stanley  v.  Weston  Ins.  Co.  (L.  R.  3  Ex. 
71)  283 

Stanus  v.  Smith  (Tex.)  (30  S.  W.  Rep.  262), 

597,  617 

Staples  v.  Dickson  (88  Me.  362) 52,  145 

Stark  v.  Coffin   (105  Mass.  328  [1870]) 453 

—  v.   Homuth   (Tex.)    (45  S.   W.   Rep.  761 

— -  v.  Miller  ' (Mich'.) '  (71 '  N!  '  W. '  Rep'.'  876)', 

378,  387 

v.  Spaulding  (Ky.)  (39  S.  W.  Rep.  234)  547 

Wend.   149), 

235,  373,  374,  407,  605 

State  v.   Atkinson    (24  Vt.   448) 702 

v.    Bell    (34   Ohio    St.    194) 789 

v.   Brown   (27  N.  J.   Law  13) 736,871 

v.  Buck   (La.)   (15  So.  Rep.  531)-  ••  -378,  388 

v.   Carpenter  (2  N.  H.  513) 702 

v.   Company   (49  N.   H.  240,  250) 421 

v.  Croker  (S.  C.)    (27  S.  E.  Rep.  49).-  629 

v.  Davenport,  etc.,  R.  Co.  (47  Iowa  507 

— 8v.7]Eason  '(N.'  C.)'  (19  S.'  K  Rep.' 

v.    Eau    Claire    (40   Wis.    533) X43 

v.  Flad   (23  Mo.  App.   185) 813 

v.  Forrest  (Mass.)  (43  Pac.  Rep.  51) . . .  618 

v   Freiberg  (Ohio  Sup.)  (31  N.  E.  Rep. 

v.  Gillman  (14  N.  H.  476) 235 

v.  Gilmanton  (9  N.  H.  461,.  463) 421 

881)    2°4,  209 

v.   Gilmarton   (14  N.   H.  467) 1720 

v.    Griffin    (N.    H.)    (39   Atl.    Rep.    260 

J-t^Hoff  (Tex.) '  (29"  S.'  W.'  'Rep.'  '672) ! '. '. .  626 

v.     Horn     (Kan.)     (12    Pac.     Rep.     148 

[1887])    683 


. 
Starr  v.   Child   (20 


721 
234,411 


State  v.  Hudson,  etc.,  R.  Co.  (46  N.  J.  Law 

289)    739 

v.  Indiana,  etc.,  Gas,  Oil,  and  Min.  Co. 

120   Ind.    579) 283 

v.   Kronert  (Wash.)   (43  Pac.   Rep.  £76)  222 

v,   Morris  Eq.    (26  N.  J.   L.  495) „..  143 

v.   Newark    (N.  J.)    (40  Amer.   &  Eug. 


Corp.    Cas.   33    [1891]) 

v.    Newark    (N.    J.)    (8 

[1887]) 


Atl.    Rep.    128 


v.  Tichenor  (51   N.  J.  L.  345). 
v.   Trask   (6  Vt. 


143 

812 
— —  i;."busatonic  W.   Co.    (51   Conn.    137)..     85 

v.   Pottmeyer   (33   Ind.  402) 163,  164,166 

v.  Ramsey  Co.  (Minn.)  (51  N.  W.  R.;p. 

112  [1892])    304 

v.  Schilb  (47  la.  611) 680 

v.   Seymour  (6  Vroom  47) 352 

v.  Strong  (25  Me.  297) 703 

v.  Suttle  (N.  C.)  (20  S.  E.  Rep.  725)...  521 

v.  Telephone  Co.   (36  Ohio  St.  296)....  869 

v.  Thomas   (Del.)_  (4_  Harr.  568) 703 

Vt.  355) • 706 

v.  Wilkinson  (2  Vt.  480) 704 

v.  Wilson  (42  Me.  9) ..  240 

v.  Wolfe  (N.  C.)  (17  S.  E.  Rep.  528)..  683 

v.  Woodward  (23  Vt.  92) 704 

State  Sav.  Bank  v.  Stewart  (Va.)  (25  S. 

E.  Rep.  543) 545 

State  Trust  Co.  v.  Duluth  (Minn.)  (73  N. 

W.  Rep.  249  [1897]) 147,148 

Steamboat  Globe  v.  Kutz  (la.)  (4  G.  Green 

433)  240 

Stearns'  Ex'r  v.  City  of  Richmond  (Va.) 

(14  S.  E.  Rep.  847) 333 

Stedjnan  v.  Smith  (8  E.  &  B.  i  [1857])....  527 
Steele  v.  Todd  {.Pa.  Sup.)  (27  Atl.  Rep. 

942)  269 

Steelman  v.  Atl.  City  Sew.  Co.  (38  Atl. 

Rep.  742)  555,  559 

Steers  v.  Brooklyn  (101  N.  Y.  51) 379,382 

Steigleder  v.  Marshall  (Pa.  Sup.)  (28  Atl. 

Rep.  240)  611 

Stein  v.  Bienville  U.  S.  Co.  (141  U.  S. 

67)  147 

v.  Burden  (29  Ala.  127) 105 

v.  Dahm  (Ala.)  (u  So.  Rep.  597).  .649,  650 

Steinbuchel  v.  Lane  (Kan.)  (51  Pac.  Rep. 

886  [1898])  406,  410 

Stein  Canal  Co.  v.  Kern  Island  Irr.  Co. 

53  Cal.  563) 75 

Steinke  v.  Bently  (Ind.)  (34  N.  E.  Rep.  97)  661 
Steinmer  v.  Scottish  Union  &  National  Ins. 

Co.  (53  Pac.  Rep.  498) 479 

Stephens  &  Co.  Transp.  Co.  v.  West. 

Union  Tel.  Co.  (8  Ben.  50) 242 

Stephenson  v.  Goff  (La.)  (10  Rob.  99) 378 

—  v.    Wilson    (50    Wis.    95,    37    Wis.    482, 

40  Wis.  594) 527 

Sterling  Hyd.  Co.  v.  Williams  (66  111.  393)  87 
Stetson  v.  Adams  (Me.)  (39  Atl.  Rep.  575 

[1898]) • 573,599 

v.  Patton  (2  Me.  358) 45 

Stevens  v.  Erie  R.  Co.  (21  N.  J.  Eq.  259)  745 

v.  Hampton  (46  Mo.  408) 45 

v.  Kelly  (78  Me.  445) 166 

v.  Muskegon  (Mich.)  (69  N.  W.  Rep. 

227)  661,  664 

v.  Rose  (Mich.)  (13  West  Rep.  765)...  8 

v.  Wait  (112  111.  544) 542,547,588 

Stevenson  v.  Chattanooga  (4  Am.  &  Eng. 

Corp.  Cases  503) 7°5 

v.  Wallace  (27  Gratt.  (Va.)  77) 325 

Stewart  v.  Carlton  (31  Mich.  270,  381).  .580,  6n 

v.  Cass  (16  Vt.  663) 465 

v.  Chicago  G.  St.  Ry.  Co.  (58  111.  App. 

446)  786 

v.  Mayor  (7  Md.  515) 755 

v.  Ohio  River  R.  Co.  (W.  Va.)  (18  S. 

E.  Rep.  604) 721 

v.  Patrick  (68  N.  Y.  450  [1877!) 606 

Stiles  v.  Estabrooks  (Vt.)  (29  Atl.  Rep. 

961)  617 

Stillman  v.  Burfeind  (N.  Y.)  (21  App.  Div. 

13)    373,  376 


Iviii 


TABLE   OF  CASES. 


Stimmel  v.   Brown   (Del.)    (7  Houst.  219), 


330 


Stinchfield    v.    Gillis    (Cal.)    (40    Pac.    Rep. 

98)    .........................................  573 

Stock  v.  Jefferson  Tp.  (Mich.)  (72  N.  W. 

Rep.    132    [1897])  ..........................  54,  61 

Stockman  v.  Riverside  L.  &  I.  Co.  (64  Cal. 

57)    .........................................     75 

Stoll  v.  Beecher  (Cal.)  (29  Pac.  Rep.  327), 

Stolp  v.  Hoyt  (44  111.  220)  ..................  '387 

Stone  v.  Augusta  (46  Me.   127   [1858])  ......  407 

Stoner  v.   Hunsicker   (47  Pa.   St.   514)  ......  311 

—  v.    Rice    (Ind.)    (22    N.    E.    Rep.    968), 

410,  421 

-  v.    Texas,    etc.,    R.    Co.    (45    La.    Ann. 
115)    ........................................  320 

Stonewall    Phosphate   Co.   v.   Peyton    (Fla.) 
(23    So.    Rep.    440    [1897])  ..................  579 

)    Mass.    63    [1868]), 

550,  SSi,  554 


Stoops    v.    Smith    (100 


Storer   v.   Freeman    (6   Mass.   435)  ..........  374 

Story  v.  N.  Y.  El.  R.  Co.  (90  N.  Y.  122).  781,  794 

•  -  v.  Odin  (12  Mass.  157)  .......  .  ..........  325 

Stoughton    v.    Rice    (Ky.)    (32   S.    W.    Rep. 

1083)    .......................................  578 

Stout  -v.  McAdams  (2  Scam.  67)  ............  180 

Stowers  v.  Gilbert  (Sup.)  (33  N.  Y.  Supp. 

101)    ----  .  ...................................  579 

-  y.  Postal  Tel.  Co.   (68  Miss.  559)  .......  812 

Strait  v.   Brown   (16  Nev.  317)  ............  75,110 

Strange  v.   Spalding   (Ky.)    (29  S.   W.   Rep. 

137)    ................................  431,  432,  521 

Strickler  v.  Colorado  Springs  (16  Colo.  61), 

77,  no 

Strong  v.   Powell  (Ga.)   (20  S.  E.  Rep.  6)..  521 
Stroupe  v.   McClaskey   (Pa.)    (10  Atl.    Rep. 

42,   481    [1887])  ..............................  584 

Stuart  v.   Baltimore  (7  Md.   500)  ............  353 

Studstill   v.   Willcox    (Ga.)    (20  S.    E.   Rep. 

120)    ........................................  526 

Stump  v.  McNairy  (Tenn.)  (5  Humph.  363)  234 
Stuyvesant  v.   Dunham   (9  111.  61)  ..........  501 

Succession  of  Delachaise  v.  Maginnis  (La.) 

(n  So.  Rep.  715) 


p.  715 
d    Mini 


379 


Suffolk    Gold    Mining    Co.    v.    San    Miguel 
Mining    Co.    (Col.    App.)    (48    Pac.    Rep. 
828)    .....................................  208,  220 

Sullens  v.  Railway  Co.  (38  N.  W.  Rep.  545)  173 
Sullivan    v.    Collins    (Col.    Sup.)    (39    Pac. 
Rep.    334)  ...................................  547 

-  v.    Eddy    (111.    Sup.)    (45    N.    E.    Rep. 
837)    ........................................  521 

-  v.    Zeiner    (Cal.)    (33   Pac.    Rep.   209), 

322,  323,  326,  327 
Sullivan,  Town  of,  v.  Phillips  (Ind.)  (11  N. 

E.    Rep.    300    [1887])  ....................  188,  190 

Sulphur  Mines  Co.  v.  Thompson's  Heirs 

(Va.)   (25  S.  E.   Rep.  232)  ..............  555,559 

Sumner  v.  Conant  (10  Vt.  9)  ..............  45 

-  ?'.   Stevens   (6  Met.  337)  .................  533 

Susquehanna   &   Wy.   Val.    R.    &   C.   Co.   v. 

Quick    (68   Pa.    St.    189)  ....................  529 

Sutherland  v.  Jackson  (32  Mo.  80)  ..........  454 

Sutton  r.  Groll  (42  N.  J.  213  [1886])  ........  442 

-  v.     Nicholaisen     (Cal.)     (44    Pac.     Rep. 
805)    ........................................  683 

Suydan  v.  Dunton  (Sup.)   (32  N.  Y.  Supp. 

Swan   v.    Munch    (Minn.)'  '  (67  '  N!  '  W.'  '  Rep. 

1022)    .......................................  243 

Sweatman  v.  Holbrook  (Ky.)  (38  S.  W. 

Rep.    691)  ...................................  390 

Sweeney  v.  Mont.  Cent.  Ry.  Co.  (Mont.) 

(47  Pac.  Rep.  791)  ......................  105,138 

Swenson  v.  Willsford  (Tex.)  (19  S.  W.  Rep. 

613)    ........................................  632 

Swett  v.  Cutts  (50  N.  H.  439)  ...........  271,275 

Swift  v.  Goodrich  (70  Cal.  103)  .......  ....63,71 

-  v.  Mulkey  (Oreg.)   (21  Pac.  Rep.  871).  526 
Swindon  W.  Co.  v.  Wilts,  etc.,  Co.   (Eng.) 

(L.  R.  7  H.  L.  Cas.  697)  ..................     62 

Syracuse   S.   S.    Co.   v.   Rome,   etc.,    R.    Co. 
(67    Hun    161)  ..............................  759 


T. 


§§ 


Tacoma  Hotel  Co.  v.  Tacoma  L.  &  W.  Co. 

(Wash.)  (28  Pac.  Rep.  516) 150 

Taft  v.  Commonwealth  (Mass.)  (33  N.  E. 

Rep.  1046)  683 

Taggart  v.  Newport  St.  R.  C>  (iu  R.  I. 

688)  8i8> 

Talbot  v.  Grace  (30  Ind.  389) 703 

v.  N.  Y.  &  H.  R.  Co.  (151  N.  Y.  155, 

45  N.  E.  Rep.  382) 721 

Tampa  W.  Co.  v.  Cline  (Fla.)  (20  So.  Rep. 

780)  54,  257,  258 

Tanbert  v.  St.  Paul  (Minn.)  (71  N.  W.  Rep. 

664)  120 

Tanner  v.  Valentine  (75  111.  624  [1874])...  180 

Tapley  v.  Smith  (18  Me.  12) 8 

Tappan  v.  Boston  W.  P.  Co.  (Mass.)  (31 

N.  E.  Rep.  703) .' 376,383 

Tappendorf  v.  Downing  (Cal.)  (18  Pac. 

Rep.  247  [1888]) 378 

Taraldson  v.  Lime  Springs  (Iowa)*(6o  N.' 

W.  Rep.  658) 706 

Tarbell  v.  Bowman  (103  Mass.  341) 590 

Tartar  v.  Spring  Creek  M.  &  Mfg.  Co.  (5 

Cal.  395)  75 

Tatum  v.  St.  Louis  (Mo.  Sup.)  (28  S.  W. 

Rep.  1002)  382 

Taylor  v.  Abbott  (Cal.)  (37  Pac.  Rep,  408)  no 
v.  Baltimore,  etc.,  R.  Co.  (33  W.  Va. 

39)  117 

v.  Blake  (N.  H.)  (10  Atl.  Rep.  698 

[1887])  107 

v.  Cedar  Rapids,  etc.,  R.  Co.  (25  la. 

v.   Fickas   (64  Ind.    167) 136 

v.     Fomby     £Ala.)     (22     So.     Rep.     910 

[1897])     502,  573,  577,  580,  605 

v.  Hampton  (S.  C.)   (4  McCord  61)....  64^ 

v.    McConigle    (52    Pac.    Rep.    159), 

615,  623,  624,  629 

v.  Millard  (118  N.  Y.  244  [1890]) 495 

v.  Slingerland  (Minn.)  (40  N.  W.  Rep. 

575)    52o 

v.   Welch    (6   Oreg.    198,   200) 71,259 

v.    Wright    (111.)    (13    N.    E.    Rep.    529 

[1887]) 560 

Teass    v.    St.    Albans    (W.    Va.)    (17    S.    E. 

Rep.  400)   498,  573 

Tenant  v.  Goldwin   (6  Wood  311) 263 

Tennessee  &  C.  R.   Co.  v.   Danforth  (Ala.) 

(20   So.    Rep.   502) 121 

Tennessee  Coal,  Iron  &  R.  Co.  v.  Hamilton 

(Ala.)    (14  So.   Rep.   167   [1893]), 

213,  214,  217,  220 

Terre  Haute  &  I.  R.  Co.  v.  Zehner  (Ind. 
App.)  (42  N.  E.  Rep.  756) 107,644 

Terre  Haute  El.  L.  &  P.  Co.  v.  Citizens' 
El.  L.  &  P.  Co.  (Ind.  Super.  Ct.)  (6 
Amer.  El.  Cas.  193  [1895]) 296 

Terry  v.  New  York  (N.  Y.)   (80  Bosw.  504)  145 

Tewksbury   v.    French    (44   Mich.    102) 545 


Texarkana    &    Ft.    S.    Ry.    Co.    v.    Parsons 

.)    (74  Fed.    Rep.    .     . 
Texas    &    P.    Ry    Co.    v.    Gaines    Tex.    Civ. 


(C.    C.   A.)    (74  Fed. 


.JtI9,   121 

685 


App.)   (27  S.  W.  Rep.  266). 
Texas,  etc.,   Ry.   Co.  v.   Padgett   (Tex.)    (37 

S.    W.    Rep.    92) 192 

Texas   Town-site    Co.   v.    Hunnicutt    (Tex.) 

31    S.   W.   Rep.  520) 633 

Thames  Bank  v.   Lovell   (18  Conn.  500) 245 

Thatcher   v.    Gottleib    (C.    C.   A.)    (59   Fed. 

Rep.    872) 523 

Thayer  v.  Boston  (19  Pick.   (Mass.)  511)...  703 

v.    Finton    (108    N.    Y.    394), 

546,  548,  550,  57i,  572,  588,  591,  615 

Thomas  v.  Babb   (45  Mo.  384) 518 

v.  Brackney  (N.  Y.)   (17  Barb.  654) 222 

v.    Calhoun   (58  Miss.   80) 86 

v.  Concordia  Cannery  Co.  (68  Mo.  App. 

350)    272 

v.  Guirand  (6  Colo.  530) 75 

v.    Petersen    (Texas)    (24    S.    W.    Rep. 

1125)    151 


TABLE   OF  CASES. 


lix 


Thomas  v.  Thomas  (2  C.  M.  &  R.  34) 183 

Thomasson  v.  Hanna  (Ky.)  (18  S.  W.  Rep. 

227)  576 

Thompson  v.  Burhans  (61  N.  Y.  70) 521 

v.  Ladd  (169  111.  73) 590 

-v.  Lee  (8  Cal.  275) 75 

v.  Noble  (Pittsb.  (Pa.)  201,  n  Min. 

Rep.  137)  283 

v.  Sheppard  (Ala.)  (5  So.  Rep.  334 

[1889])  562,  588 

v.  Southern  Cal.  M.  R.  Co.  (Cal.)  (23 

Pac.  Rep.  130) 544 

v.  Thompson  (Ky.)  (20  S.  W.  Rep. 

Thorp  v.   Cole  (2  C.   M.   &  R.  367) 477 

Threadgill     v.     Bickerstaff     (Tex.)     (29     S. 

W.    Rep.    757) 555 

Thunder  Bay  B.  Co.  v.  Speechly  (31  Mich. 

533) 243 

Thurber  v.  Martin  (Mass.)  (2  Gray  394) 59 

Thurston  v.    Hancock    (12   Mass.   221) 323 

Tibbetts  v.    Estes   (52   Me.    566) 578 

Tiede  v.   Schneidt   (VVis.)    (74  N.   W.    Rep. 

798    [1898])    209,213,214 

Tierney  i1.   Brown   (Miss.)    (5  So.   Rep.    104 

.[1889])     546,  5540,  560 

Tiffany  v.   Commonwealth  (121   Pa.  St.   165)  351 

Tilly  v.  Slough  G.  Co.   (17  Gas  J.  331) 305 

Timm  v.   Bear   (29  Wis.   254) 59 

Tinker  v.    Metropolitan    El.    R.    Co.    (Sup.) 

(30    N.    Y.    Supp.    1014) 448 

Tinner  v.  United  States  (C.  C.  A.)  (66  Fed. 

Rep.   280-289)    624 

Tinsman  v.   Belvedere,   etc.,    Co.    (26  N.   J. 

L.    148) 131 

Tissot   v.    Gt.    So.    Tel.    Co.    (39   La.    Ann. 

996)    316,  318 

Titcomb  v.   Kirk   (51   Cal.   288) 73 

Titus  v.   Morse  (40  Me.  348  [1855]) 597 

Tobey  v.   Moore   (130  Mass.  448   [1881]) 445 

v.  Secor    (60  Wis.   310,   500) 519 

Todd   v.    Pittsburg,    etc.,    R.    Co.    (19   Ohio 

St.    514) 738 

v.  Railroad  Co.   (19  Ohio  St.  514) 704 

Tognazzini    v.     Morganti     (Cal.)     (23     Pac. 

Rep.    138)    627 

Toledo   v.    Crasser    (12   Ohio    C.    C.    520), 

184,  194,  272 

Toledo,  etc.,  R.  Co.  v.  Green  (67  111.  199)..  742 
Tolkin  v.  Anderson  (Tex.  Sup.)   (19  S.   W. 

Rep.   350)    586 

Tolle   v.   Correth   (31   Tex.   362) 72 

Tolleston    Club   t'.    Clough    (Ind.    Sup.)    (43 

N.  E.  Rep.  647) 410 

v.  State    (Ind.    Sup.)    (38    N.    E.    Rep. 

214)     410 

Tolman  v.  Sparhawk  (5  Mete.  469) 500 

Topeka    z\    Cowee    (Kans.)    (29    Pac.    Rep. 

560)    683 

Topeka   W.   Co.   v.   Whiting   (50   Pac.    Rep. 

877)    145 

Totel    v.    Bonnefoy    (111.)    (14    N.    E.    Rep. 

687   [1888])    669 

Towle  v.   Remsen   (70  N.  Y.  303  [1877]) 413 

Town  v.   Salentine   (Wis.)    (66  N.   W.   Rep. 

395)     44i 

Townes  v.  Augusta  (S.  C.)    (23  S.  E.  Rep. 

984)     * 85 

Townsend  v.   Bell   (Sup.)    (24  N.   Y.   Supp. 

193,  17  N.  Y.  Supp.  210).  .207,  213,  214,  216,  219 
Tracy  v.  Atherton  (36  Vt.  503).  .672,  673,  674,  675 
Transportation  Co.  v.  Chicago  (99  U.  S. 

635   [1878])    721 

Travellers'   Ins.   Co.  v.   Yount   (98  Ind.  454 

[1884])     406 


Treak  v,  Joslyn   (139  Mass.  94) 547 

v.  B;  ;  . 

Barteau   (5 
Trindle  v.  Edwards  (Tex.)   (19"  S:  W.  Rep. 


Treat 
Trerice 


Sates  (27  Mich.  390;..... 
Barteau   (54  Wis.   99).. 


86 
70S 


772)  617 

Trinity,  etc.,  R.  Co.  v.  Schofield  (72  Tex. 

400)  f B IQ3 

Triplett  v.  Jackson  (Kan.)  (48  Pac.  Rep. 

93i)    341 


Tritt  v.   Hoover   (Mich.)    (74  N.   W.    Rep. 

117  [1898])  Soi 

Trowbridge  v.  Brookline  (144  Mass.  139)..  255 

v.  True  (52  Conn.  190) 329,^0 

Truby  v.  Palmer  '(Pa.)  (4  Cent.  Rep.  925, 

6  Atl.  Rep.  74  [1886]) 283 

Trudeau  v.  Field  (Vt.)  (38  Atl.  Rep.  162 

[1897])  88 

Trull  v.  Fuller  (28  Me.  545) 8 

Trustees  v.  Jessup  (Sup.)  (42  N.  Y.  Supp. 


4) 


665 


-  v.  Schroll    (111.)     (12    N.    E.    Rep.    243 
[1887]  )    .................................  1720,  410 

Tucker   v.    Chicago    &   A.    R.    Co.    (2    Mo. 
App.   Rep.   1328)  ............................  195 

-  v.  Jones     (Mont.)     (19    Pac.     Rep.    571 
[1889])    .....................................     76 

-  v.   Salem   Mills    (Oreg.)    (16  Pac.    Rep. 
426    [1888])    .............................  105,107 

Tuffts  v.   Spring   (15   Mass.    135)  ............  352 

Tunstall  v.   Christian   (80  Va.   i)  ............  326 

Turner  v.   Cole   (49  Pac.    Rep.  971)  .........     77 

-  v.  Fitchburg    Ry.    Co.    (Mass.)    (14    N. 

E.    Rep.   627   [1888])  ........................  685 

-  v.  Holland     (54    Mich.    300,    65    Mich. 
453)    ........................................  234 

-  v.  Mirfield    (34   Beav.   390)  ..............  270 

v.  Parker    (Oreg.)     (12    Pac.    Rep.    495 

87j)  ..............................  :...:::  0s 

v.  Union  Pac.   Ry.  Co.   (Mo.  Sup.)   (20 

Rep.  673) 
v.  Warren    (Pa.    Sup.)     (28    Atl.        ep. 


S.  W.   Rep.  673)  .......................  5540,600 

v.  Warren    (Pa.    Sup.)     (28    Atl.    R 
781)    ................  .  .......................     45 


Turnpike  Co.  v.  American,  etc.,  News  Co. 

(43  N.  J.  Law  381)  .........................  842 

Turnpike  R.  Co.  v.  Coventry  (N.  Y.)  (10 

Johns.    389)  .................................  795 

Tutwiler  v.  Kendall  (Ala.)  (21  So.  Rep. 

332)    .....................................  701,  709 

Tyler  v.  Hammond  (Mass.)  (n  Pick.  193)  645 


Tynon  v.  Despain   (43  Pac.   Rep.   1039).  .  .77,  844 
Tyson  v.  Post  (N.  Y.)  (15  N.  E.  Rep.  316)      8 
Tytus    Gardner    Paper    Co.    v.    Middletown 
Hyd.  Co.  (15  Ohio  Cir.  Ct.  Rep.  118)....  677 


U. 

U.  B.  Ground  v.  Robinson  (5  Wharton  18).  453 
Ulmer  v.    Farnsworth   (Me.)    (15   Atl.    Rep. 

65    [1888])    272 

Ulrick  v.  Dakota  Loan  &  Trust  Co.  (S.  D.) 

(51    N.    W.    Rep.    1023) 332 

Underwood     v.     Waldron     (33     Mich.     232 

[1878])     183 

Unger  v.    Mooney   (63   Cal.    586) 528 

Union   Mill   &   Min.    Co.   v.    Dangberg    (C. 

C.    D.    Nev.)    (81    Fed.    Rep.    73,.  2   Sawy. 

45o)     Si,  55.  61,  71,  75,  81,  82,  104,  107,  108 

-v.   Ferris    (2  Sawy.    176) 53,71.73 

Union  Pac.  R.  Co.  v.  Dyche  (31  Kans.  120), 

1720 
Union    Water    Co.    v.    Crary    (25    Cal.    504), 

United   N.   J.    R.   and   Canal   Co.   v.   Starid-  ' 

ard  Oil  Co.  (33  N.  J.  Eq.  123) 242 

United  States  v.  Alexander  (13  Sup.  Ct. 

Rep.  529,  532) 255 

v.  Andres  Castillero  (2  Bl.  20,  21) 644 

v.  Appleton  (U.  S.)  (i  Sumn.  492)....  325 

v.  Burns  (C.  C.)  (54  Fed.  Rep.  351)...  243 

-* — v.  Chicago  (7  How.  (U.  S.)  185).  ..703,  704 

v.  Estudillo  (i  Hoffm.  L.  Cas.  204) 595 

v.  Fossat  (U.  S.)  (2  How.  413) 595 

v.  Harris  (i  Sumner  21) 707 

v.  Huckabee  (16  Wall.  (U.  S.)  423).-..  4« 

v.  Linn  (i  How.  (U.  S.)  104) 47 

v.  Moline  (U.  S.  D.  C.)  (82  Fed.  Rep. 

592)  242 

v.  N.  B.  Gravel  Win.  Co.  (C.  C.  Cal.) 

(81  Fed.  Rep.  243) 218,242 

v.  Pacheco  (2  Wall.  587) 407 

v.  Pellingham  Bay  B.  Co.  (C.  C.  App.) 

(81   Fed.   Rep.   658   [1897]) 239,242 


Ix 


TABLE   OF  CASES. 


United  States  v.  Rider  (Dist.  Ct.)   (50  Fed. 

Rep.  406) 121 

v.  Rio  Grande  D.  &  Irr.  Co.  (N.  M.) 

(51  Pac.  Rep.  674  [1898]) 232,242 

f.  Union  Pac.  R.  (45  Fed.  Rep.  221)..  820 

United  States  Pipe-line  Co.  v.  Del.,  L.  &  W. 

R.  Co.  (N.  J.)  (41  Atl.  Rep.  759  [1898]).  535,  7iS 
Utley  v.  Smith  (Tex.)  (32  S.  W.  Rep.  906)  573 


Valantine    v.    Sloss    (Cal.)     (37    Pac.    Rep. 

326-329)    407 

Valentine    v.    Schreiber    (Sup.)    (38    N.    Y. 

Supp.    417) 650,  711,  712 

v.  Valentine  (2  Barb.  Ch.  (N.  Y.)  430)  465 

Van  Amberg  v.  Hitt  (Mo.  Sup.)   (22  S.  VV. 

Rep.  636) 601 

Van  Brunt  v.  Day  (81  N.  Y.  251  [1880])....  551 
Van  Der  Groef  v.  Jones  (Mich.)  (65  N.  W. 

Rep.    602) 501 

Van    Dusen    -v.    Shiveley    (Ore.)     (39    Pac. 

Rep.    76) 619 

Van  Hoeson  v.  Coventry  (N.  Y.)  (10  Barb. 

518) 75 

Van  Orsdal  v.   Burlington,  etc.,  R.   Co.   (56 

Iowa    470) 117,  1720 

Van  Witson  v.  Gutman  (Md.)  (29  Atl.  Rep. 

608)    703 

Van  Wyck  v.  Wright  (18  Wend.  57) 502 

Vance   v.    Fore    (24   Cal.    436    [1864]), 

57i,  573,  598,  599 
Vandenberg  v.  Van  Bergen  (13  Johns.   (N. 

Y.)   212) 56 

Vansickle  v.    Haines   (7  Nev.   249) 73 

Vass  v.  King  (W.  Va.)   (10  S.  E.  Rep.  402)  516 

Vaughan  v.    Rupple   (69  Mo.   App.   583) 676 

Veghte  v.  Raritan  Water-power  Co.  (N.  J.) 

(4  C.  E.  Greene  142-159) 66t> 

Vermilye  v.    Chicago,   etc.,    R.    Coy    (66   la. 

606)    731 

Vernon   Ir.    Co.   v.   Los  Angeles   (Cal.)    (39 

Pac.    Rep.   762) 61,62 

Vernum  v.   Wheeler   (N.   Y.)    (35   Hun  53), 

101,  179 

Verplank  v.   Hall    (37   Mich.   79) 424 

Vicksburg,    etc.,    R.    Co.    v.    Monroe    (La.) 

(20   So.    Rep.   664) 709 

Victoria  v.   Schott   (Tex.   Civ.   App.)    (29  S. 

W.   Rep.  681) 43i 

Vineyard    v.    Brundrett    (Tex.)    (42    S.    W. 

Rep.    232) 521,522 

v.    O'Connor    (Tex.)    (35    S.    W.    Rep. 

1084)    555 

Visalia,   City  of,  v.   Jacob    (6  Am.    &   Eng. 

Corp.   Cases    115) 7°5 

Voight  v.  Raby  (Va.)   (20  S.  E.   Rep.  824), 

496,  498 
Von  Rosenberg  v.  Haynes  (Tex.)  (20  S.  W. 

Rep.    143)    617 

Voorhees  v.  McGinnis  (48  N.  Y.  278) 8 

Voorheis   v.   Eiting    (Ky.)    (22   S.    W.    Rep. 

80)    554« 

Vosen  v.  Dantel  (Mo.)  (22  S.  W.  Rep.  734), 

5*6,  715 
Vroman  v.  Dewey  (23  Wis.  530  [1868]) 577 


Wabash    R.    Co.    v.    Sanders    (58    111.    App. 

213)  117,  137,  218 

Wade  v.  Deray  (59  Cal.  376  [1875]) 550 

Wadsworth  v.  Smith  (11  Me.  278) 1720,233 

Waffle  v.  N.  Y.  Central  R.  Co.  (53  N.  Y. 

ii  [1873]) 184,  205 

v.  Porter  (N.  Y.)  (61  Barb.  130) 106 

Waggoner  v.  Daniels  (Tex.)  (44  S.  W. 

Rep.  946  [1898]) 578 

Wagner  v.  L.  I.  R.  Co.  (N.  Y.)  (5  Thomp. 

&  C.  163) 1720 

v.  Met.  El.  R.  Co.  (N.  Y.)  (io  N.  E. 

Rep.  535)  794 

Wahle  v.  Reinbach  (76  Ga.  423) 267 

Wait  v.  May  (Minn.)  (51  N.  W.  Rep.  471)  379 


Walbrun   v.    Ballen    (68    Mo.    164) 518 

Waldin    v.    Smith    (la.)     (39    N.    W.    Rep. 

82    [1888])     600 

Walker  v.   Allen    (72  Ala.   456) 234 

v.  Board  of  P.  W.   (16  Ohio  540) 241,401 

v.    Boynton    (120    Mass.    349    [1876])....  606 

v.   Moses   (N.   C.)    (18   S.   E.    Rep.  339)  555 

v.   New   Mexico,  etc.,   R.   Co.    (17  Sup. 

Ct.    Rep.    421) 176 

v.   Schindel    (58   Md.   360) 8 

v.    Simpson    (Me.)    (13    Atl.    Rep.    580 

[1888])    474,  485,  502,  503 

Walla  Walla  v.  Walla  Walla  Water  Co.  (19 

Sup.    Ct.    Rep.   77    [1898]) 848 

Wallace  v.   Columbia  &  G.   R.   Co.    (S.   C.) 

(16   S.    E.    Rep.    35) 114 

—  v.   Driver   (Ark.)    (33  S.   W.    Rep.  641), 

378,  380,  390,  414 


v.  Musketine  (La.)  (4  Green.  373")...."..  196 

667)    .  .'    62 


Waller  v.   Manchester   (Eng.)    (6 


Walrod  v.   Flanigan   (Ga.)    (39  N.   W.   Rep. 

645  [1888]) 580 

Walter  v.  Selfe  (4  Eng.  Law  &  Eq.  15)....  301 
Walters  v.  Pfeil  (Eng.)  (i  Mood.  &  Elk. 

362)  327 

Walther  v.  Warner  (25  Mo.  289) 353,755 

Ward  v.  Albemarle  R.  Co.  (N.  C.)  (16  ' 

S.  E.  Rep.  921) 114 

v.  Atlantic,  etc.,  Tel.  Co.  (71  N.  Y.  81)  826 

v.  Cockran  (C.  C.  A.)  (71  Fed.  Rep. 

127)  516 

v.  Davis  (N.  Y.)  (3  Sandf.  502) 704 

v.  Ihler  (Mo.)  (34  S.  W.  Rep.  251)...  492 

v.  People  (N.  Y.)  (6  Hill  140) 163 

v.  Toledo,  etc.,  R.  Co.  (io  West  L. 

Jour.    365    [1853)].  ..-_:••••••.••••;:•••.•.:••  —  ••  353 

Warden   v.    He 


[arris    (Tex.)    (47   S.    W.    Rep. 


834) 55i,  57«> 

Wardens  v.  Lavezzolo  (Mass.)  (30  N.  E. 

Rep.  471)  341 

Wardlow  v.  Harmon  (Tex.  Civ.  App.)  (45 

S.  W.  Rep.  828) 497,624 

Ware  v.  Allen  (140  Mass.  513) 82,219 

v.  Chew  (N.  J.)  (i  Atl.  Rep.  746  [1889])  307 


v.  Walker  (70  Cal.  591) 


75,  77 

Waring  v.  Ayers  (40  N.""Y.  357) 556 

Warr  v.  Honeck  (Utah)   (29  Pa.  Rep.   1117)  516 
Warren  r.  Bowdran  (Mass.)  (31  N.  E.  Rep. 

300)    *..  S3» 

v.  Grand  Haven  (30  Mich.  24) 708 

v.   Lyons   (22  Iowa  351) 702,708 

v.   Thomaston   (75   Me.   329   [1883]).  .401,  447 

Washburn   v.   Cutler   (17   Minn.   361) 521 

v.   Gilman   (64  Me.    163) 222 

Washburn,    etc.,    Mfg.     Co.    v.    Worcester 

(116  Mass.  458) 242 

Washington  Ice  Co.  v.  Shortall  (101  111.  46), 

163,  168 
Wason  v.   Pilz  (Or.)   (48  Pac.  Rep.  701)....  712. 

Waterman  v.   Buck   (58  Vt.   519) 222 

v.  Johnson   (13  Pick.  261) 421,550,612 

Waters  v.   Bay  View  (61  Wis.  642  [1884])..   186 
Water-sup.  &  Stor.  Co.  v.  Larimer  &  Weld 

Irr.  Co.   (Colo.)   (51  Pac.  Rep.  496  [1897])     75 
v.    Larimer    &    W.    Res.    Co.    (53    Pac. 

Rep.  386)    76 

Watervliet    v.    Colonie    (Sup.)     (50    N.    Y. 

Supp.    487)    546 

Watervliet  Tpk.   &  R.   Co.   v.   Hudson   Riv. 

Teleph.     Co.     (61     Hun     141     [1891]),     135 

N.    Y.   393    [1892]) 292,295,296 

Watkins  v.   Baird    (6  Mass.   506) 48 

v.  Holman   (U.  S.)    (16  Pet.  25)........     53 

Watrous  v.    Morrison    (Fla.)    (14   So.    Rep. 

805)    472,  498,  502,  575 

Watson  v.  Crutcher  (Ark.)   (19  S.  W.   Rep. 

gg\  554fl 

v'.  "  Horoe '  (N*.  H-)  (J3  Atl.  Rep.  789 

[1888])  382,  383 

v.  Toronto,  etc.,  Water  Co.  (4  U.  C. 

O.  B.  158) 204 

Watson  Lodge  v.  Drake  (Ky.)  (29  S.  W. 
Rep.  332) 327 


TABLE   OF  CASES. 


Ixi 


Watterson  v.  Saldunbehere  (Cal.)    (35  Pac. 

Rep.  432) 86 

Waugh  v.  Leech  (28  111.  488) 701 

Wayzata  v.  Gt.  N.  Ry.  Co.  (Minn.)  (52 

N.  W.  Rep.  913) 421,536 

Wead  v.  St.  Johnsbury  Co.  (Vt.)  (24  Atl. 

Rep.  361) 445,  449 

Weare  v.  Weare  (59  N.  H.  293) 603 

Weaver  v.  Conger  (10  Cal.  233) 75 

v.  Eureka  Lake  Co.  (15  Cal.  271) 75 

M 


v.  Miss.  Boom  Co.  (28 

Webb  v.  Demopolis  (Ala.)  (13  So. 


inn.  534) 88 

Rep.  289), 

412,  414 

v.   Laird   (Vt.)   (7  Atl.   Rep.  465   [1887])    88 

• v.  Portland  Mfg.  Co.  (3  Sumn.  (U.  S.) 

189)    209 

Weber  v.  Anderson   (73   111.  439) 686,  68> 

v.  Miller  (9  Ohio  Cir.  Ct.  Rep.  674)....  719 

—  v.  Pere  Marquette  Co.  (62  Mich.  626) . .  421 
Webster  v.   Stevens  (5  Duer  553) 327 

—  v.  White  (S.  D.)   (66  N.  W.  Rep.  1145)  352 
Weed    v.    Keenan    (Vt.)    (13   Atl.    Rep.    804 

1888])  185,  674 

Weeks  v.  Trask  (Me.)  (16  Atl.  Rep.  413 

[1889])  463 

Weichselbaum  v.  Curlett  (20  Kan.  709) 516 

Weidekind  v.  Tuolumne  W.  Co.  (Cal.)  (12 

Pac.  Rep.  387  [1887]) 88 

Weir  v.  Bell's  App.  (81  Pa.  St.  203).  ...321,  323 

Weis  v.  Maddeson  (75  Ind.  241) 188 

Weisbrod  v.  Chicago,  etc.,  R.  Co.  (18  Wis. 

41)  45,  578 

Weiss  v.  Oreg.  I.  &  T.  Co.  (13  Oreg.  496)  71 
Welch  v.  Oregon  Ry.  &  Nav.  Co.  (Oreg.) 

(56  Pac.  Rep.  417  [1899]) 381 

Weller  v.  McCormick  (52  N.  J.  Law  470)..  319 
Welles  v.  Bailey  (Conn.)  (10  Atl.  Rep. 

565  [1887]) 377,  380 

Wells  v.  Co.  (47  N.  H.  235  [1866]).  .603,  604,  605 
v.  Heddenberg  (Tex.)  (30  S.  W.  Rep. 

702)  633 

v.  Kreyenhagen  (Cal.)  (49  Pac.  Rep. 

128)  75 

v.  Rhodes  (Ind.)  (16  N.  E.  Rep.  830 

[1889])    549 

—  v.  Tollman  (Slip.)  (34  N.  Y.  Supp.  840)  71-1 
Welsh  v.   Beaver  Falls   (Pa.)    (40  Atl.   Rep. 

784    [1898]) 664 

v.  Taylor  (N.  Y.)   (50  Hun  137  [1888]), 

648,  650 
Welton  v.  Poynter  (Wis.)   (71  N.  W.  Rep. 

597)    501 

Wendt  v.   Craig   (67   Pa.    St.   424) 243 

Wenger  v.   Hippie    (Pa.)    (13   Atl.    Rep.   81 

[1888])    683 

West  v.  Bretell  (Mo.  Sup.)  (22  S.  W.  Rep. 

705)    550 

v.   Fox  River  Paper  Co.   (Wis.)   (52  N. 

W.    Rep.    803) 432 

v.    Louisville,    etc.,    R.    Co.    (Ky.)     (8 

Bush   404)    119 

Westbrook   v.    Guderian    (Tex.)    (22   S.    W. 

Rep.   59)    627 

Westcott  v.  Middleton  (43  N.  J.  Eq.  478)..  303 
Westenfelder  v.  Green  (C.  C.)  (76  Fed. 

Rep.    925) 516 

—  v. (Oreg.)  (34  Pac.  Rep.  23) 516 

Westerly  Water-works  v.  Town  of  Westerly 

(R.  I.  C.  C.)   (75  Fed.  Rep.   131,  80  Fed. 

Rep.  611) 147,  664 

Western    Union    R.    Co.    v.    Smith    (75    111. 

496    [1874]) 745,  747,  753 

Western  Union  Tel.  Co.  v.  Amer.  Un.  Tel. 

Co.  (U.  S.)   (9  Biss.  72) 819,821 

v.    Ann    Arbor    R.    Co.    (90    Fed.    Rep. 

379) 821 

v.    Atlantic,    etc.,    Tel.    Co.     (7    Biss. 

(U.    S.)    367) ." 819 

v.  Baltimore,  etc.,  R.  Co.  (67  Md.  211), 

818,  821 

v.  Bullard  (Vt.)   (31  Atl.   Rep.  286)....  817 

v.    Champion    Elec.    Ltg.    Co.    (14   Cin.   , 

Week.  Bull.  327) 295,828 

v.   Chicago,  etc.,   R.   Co.    (86  111.  246)..  819 


Western  Union  Tel.  Co.  v.  Guernsey,  etc., 

Co.    (46  Mo.   App.    120) 295 

v.    Los   Angeles    E.    L.    (76   Fed.    Rep. 

Wilkins  v.  Nicolai  (74  N.  W.  Rep.  103)....  677 

178)    296 

v.   Rich   (19   Kan.   517) 818 

v.  Williams  (86  Va.  696) 822 

Westmoreland     &     C.     Nat.     Gas     Co.     v. 

De  Witt  (130  Pa.  St.  235) 281 

Wethersfield  v.  Humphrey  (20  Conn.  217).  23^. 
Wetmore  v.  Atlantic  White  Lead  Co.  (37 

Barb.    70,    139) 379,  382 

Whalley    v.    Lancashire    &    Yorkshire    Ry. 

Co.  (Law  Rep.  13  Q.  B.  Diy.  131   [1884]).  120 
Wharf    Compy.    v.     Portland     (46    Me.    42 

[1858])     449,  451 

Wharton    v.    Brick    (N.    J.)    (8    Atl.    Rep. 

529  [1887]) 408,  548 

v.    Bunting    (73    111.    16) 526 

Wheatfield  v.  Grundman  (164  111.  250) 706 

Wheatley  v.   Baugh   (25   Pa.   St.   528), 

259,  269,  271,  275 
Wheeler    v.    Northern    Colo    Irr.    Co.     (10 

Colo.    582) 73,  75 

v.   Spinola   (54  N.   Y.   377) 421 

v.  State  (Ala.)   (19  So.  Rep.  993) 492,497 

v.  Winn  (53  Pa.  St.  122) 521 

Wheelock    v.    Jacobs    (Vt.)    (40    Atl.    Rep. 

41   [1897]) 252,  262 

Whetstone  v.  Bowser  (29  Pa.  St.  60)....  259 
Whilcher  v.  Holland  W.  Co.  (142  N.  Y. 

626,   48   St.    Rep.    196) 841 

Whipperman    v.    Dunn    (Ind.)    (24    N.    E. 

Rep.    1045   [1890]) 558 

Whisler  v.  Wilkinson  (22  Wis.  572  [1868]), 

233,  243 
Whitbeck  v.  N.  Y.  Cent.  R.  Co.   (36  Barb. 

(N.    Y.)    644) 320 

Whitcher  v.  Whitcher  (49  N.  H.  176) 46? 

Whitcomb   v.   Dutton    (Me.)    (36   Atl.    Rep. 

67)    502,  577 

White  v.   Blum    (C.    C.   A.)    (79   Fed.    Rep. 

271)    632 

v.  Denman  (i  Ohio  St.  no) 45 

v.   Dresser   (135   Mass.    150) 330 

v.   East   Lake  L.   Co.    (Ga.)    (23   S.   E. 

Rep.   393) na 

v.  Godfrey  (97  Mass.  472  [1867]) 447,448 

v.   Hapeman    (43  Mich.   267) 518- 

v.    Hass    (32   Ala.   432) 47 

v.  Meadville  (Pa.)   (35  Atl.  Rep.  695).-  664 

v.    Peabody    (Mich.)    (64   N.    W.    Rep. 

41)    500 

v.   Phillips   (15  C.   B.   N.   S.   245) 242 

v.  Spreckles  (75  Cal.  610  [1888]). 494,  498,  502 

v.  Tide-water  Oil' Co.   (N.  J.   Ch.)    (33 

Atl.    Rep.    47) 

v.  Todds  Valley  W.  Co.   (8  Cal.  443)..  '75 

—  v.  Ward  (W.  Va.)  (14  S.  E.  Rep.  22)..  498 

Whitehall  v.  Jacobs  (75  Wis.  479) 2 

Whitehead    v.    Atchison    (Mo.)    (37    S.    W. 

Rep.    938) 599 

Whitehurst   v.    McDonald    (C.    C.    A.)    (52 

Fed.   Rep.   633) 406 

v.  Pettipher  (87  N.  C.  179  [1882]) 620 

White's    Bank    v.    Nichols    (64    N.    Y.    65 

[1876])    i 445,  45i,  452,  578 

Whitman  v.   Shaw  (Mass.)    (44  N.  E.   Rep. 

. . 'hitney 'v." Edmunds "(94  N.  Y.  309  [1884])  516 
Wholey  v.  Caldwell  (Col.)  (41  Pac.  Rep.  31)  103 
Whyte  v.  Builders'  League  (52  N.  Y.  Supp. 

65,  23  Misc.  Rep.  385) 335 

Wickham  v.  Kawker  (7  Mees.  &  W.  63)..  667 
Wiggins  ,v.  Kirby  (Ala.)  (17  So.  Rep.  354)  516 
v.  Muscupiabe  Land  &  Water  Co. 

(Cal.)  (45  Pac.  Rep.  160) 75 

Wigmann  v.  Jefferson  (61  Mo.  55) 105 

Wilcox  v.  Bread  (92  Hun  9) 411 

v.  Hausch  (64  Cal.  461) 75,102- 

Wiley  v.  Sanders  (36  Mich.  60) 545 

Wilgus  v.  Bd.  of  Comm'rs  (Kan.)  (38  Pac. 

Rep.  787) 707 

v.  Gettings  (21  la.  177) 8 


70Q 


Ixii 


TABLE   OF  CASES. 


Wilhelm  v.  Burley,son  (106  N.  C.  381) 135 

Wilkerson  v.  Webb  (Miss.)  (23  So.  Rep. 

180  [1898]) 554 

Wilkins  v.  Nicolai  (74  N.  W.  Rep.  103)....  677 
v.  Pensacola  City  Co.  (Fla.)  (18  So. 

Rep.  20) 516 

v.  Town  Council  (S.  C.)  (32  S.  E.  Rep. 

299  [1899]) 756 

Wilkinson  Coal  &  Coke  Co.  v.  Driver 

(Wash.)  (43  Pac.  Rep.  889) 544 

Willard  v.  Pike  (Vt.)  (9  Atl.  Rep.  907 

[1887])  5 

Willett  v.  St.  Albans  (Vt.)  (38  Atl.  Rep. 

72  [1897])  3o6 

Willets  Mfg.  Co.  -v.  Board  (N.  J.)  (40  Atl. 

Rep.  782) 720 

Willetts  v.  'Brown  (N.  Y.)  (42  Hun  140)..  283 
Willey  v.  Thwing  (Vt.)  (34  Atl.  Rep.  428)  715 
Williams  v.  Camden  &  R.  W.  Co.  (Me.) 

(n  Atl.  Rep.  600  [1888]) 194 

v.  Cunningham  (Mass.)  (18  Pick.  312).  702 

v.  Flood  (63  Mich.  487) 667 

v.  Fulmer  (Pa.  Sup.)  (25  Atl.  Rep. 

103)  101 

-v.  Harter  (53  Pac.  Rep.  405) 77 

v.  Hughes  (N.  C.)  (32  S.  E.  Rep.  325 

1899]) 611 

v.  Kenney  (14  Barb.  629) 330 

v.  James  (L.  R.  2  C.  P.  577  [1867])...  681 

v.  McAliley  (Cheeves  200) 687 

v.  Rand  (Tex.)  (45  S.  W.  Rep.  156)....  522 

v.  Schantz  (la.)  (55  N.  W.  Rep.  202)..  501 

v.  Society  (i  Ohio  St.  478) 704 

v.  Wadsworth  (51  Conn.  277) 61 

v.  Warren  (21  111.  541) 485 

v.  Wilcox  (8  A.  &  E.  314) 242 

v.  Winslow  (Tex.)  (19  S.  W.  Rep.  513)  580 

Williamson  v.  N.  J.  So.  Rep.  Co.  (6  Cent. 


L.  J.  381  [1878]). 
Willis  v.   Perry   (la.)    (60  N.   W.   Rep.   727)  258 
Wilmot  v.  Yazoo  &  M.  V.  R.  Co.   (Miss.) 

(24   So.    Rep.    701    [1899]) 685 

Wilson   v.   Acree    (Tenn.    Sup.)    (37    S.    W. 

Rep.    90) 703.  709 

v.  Blake  (53  Vt.  305) 521 

v.  Charlotte  fN.  C.)  (14  S.  E.  Rep.  961)  148 

v.    Equitable    Gas    Co.    (Pa.    Sup.)    (25 

Atl.    Rep.    635) 850 

v.  Getty  (57  Pa.   St.  266) 465 

v.   Higbee   (C.  C.)    (62  Fed.   Rep.  723).     75 

v.  Homer  (59  Pa.   St.   155) 618 

v.  Hunter  (Ark.)   (28  S.  W.  Rep.  419).  336 

v.  Johnson  (Ind.  Sup.)   (38  N.  E.  Rep. 

38)    546 

v.   Lynn   (119  Mass.   174) 752 

v.  Morris  (Pa.  Sup.)  (33  Atl.  Rep.  275)  611 

v.  New  Bedford  (108  Mass.  261   [1871]), 

272,  274 

v.  Newberry  (L.  R.  7  O.  B.  31) -17 

v.    N.   Y.    El.    R.   Co.    (Super.)    (30   N. 

Y.   Supp.   547) 644 

v.    Riddick    (Iowa)    (69    N.    W.    Rep. 

1039)    547 

v.   Shiveley  (n   Oregon  215) 377 

v.    Ward     (Colo.)     (56    Pac.     Rep.    573 

1899])    254 

lts    Canal    Co.    v.    Swindon    Water    Co. 

(L.  R.  9  Ch.  455) 60,71 

Wimbledon      Conservators     v.      Dixon      (i 

Ch.    D.    362) 681 

Wimer  v.   Simmons   (Oreg.)    (39  Pac.   Rep. 

6)    75,  76 

Winchester  v.  Osborne  (61  N.  Y.  555) 22*. 

Winfield  W.  Co.  v.  Winfield  (51  Kan.   104)  147 
Winkley  v.  Salisbury  Mfg.  Co.   (Mass.)   (14 

Gray   443) 374 

Winn  v.  Abeles  (35  Kan.  85) 518 

v.   Ulster   Co.    Sav.    Inst.    (N.    Y.)    (37 

Hun    349) 669 

Winnipisiogee    Paper    Co.    v.    New    Hamp- 
shire Land  Co.  (C.  C.)  (59  Fed.  Rep.  542), 

521,     576,  583 

Winona  v.  Huff   (n   Minn.    114) 703 

Winslow  v.   Cincinnati   (6  Ohio  N.   P.  47)  706 


Wi! 


Winslow  v.  Gifford  (6  Cush.  327) 352,354 

Winter  v.  Peterson  (24  N.  J.  Law  524)....  319 

v.  Stephens  (9  Allen  526) 532 

Wirt  v.  McEnery  (6  Am.  &  Eng.  Corp. 

Cases  105) 704 

Wisconsin  Cent.  R.  Co.  v.  Cornell  Univ. 

(52  Wis.  537) 739 

Wisconsin  Imp.  Co.  v.  Manson  (43  Wis. 

255)      24* 

Wisconsin    Teleph.    Co.    v.    Eau    Claire    St. 

Ry.   Co.   (3  Amer.  El.  Cas.  383   [1890]), 

295,  296,  831 
Wise   v.    Burton    (Cal.)    (14   Pac.    Rep.   678, 

683    [1887]) 605,  630 

Wisher    v.    N.    Y.    &    N.    E.    R.    Co.    (135 

Mass.    197    [1883]) 685 

Witheral    v.    Muskegon    B.    Co.    (68    Mich. 

48)    243 

Withers  v.  Buckley  (U.  S.)  (20  How.  84)  241 
Wixon  v.  Bear  River,  etc.,  Co.  (24  Cal.  367)  75 
Wolf  v.  St.  Louis  I.  W.  Co.  (10  Col.  541)..  87 
Wollman  v.  Ruehle  (75  N.  W.  Rep.  425)...  467 
Womerslev  v.  Church  (17  L.  T.  N.  S.  190)  269 
Wood  v.  "Armour  (Wis.)  (60  N.  W.  Rep. 

791)    528 

v.  Edes  (2  Allen  (Mass.)    (580) 83 

v.   Fowler   (26   Kan.   682) 164 

v.   Kelly  (30  Me.  47) 421 

v.  Sutcliffe  (2  Sum.  U.  S.   163) 202 

v.    Wand    (3    Exch.    748) 1720 

v.  Willard  (37  Vt.  377) 629 

Woodbury  v.  Evans  (N.  C.)  (30  S.  E.  Rep. 

2    [1898]) 601 

v.  Short  (17  Vt.  387) 107 

v.   Venia   (Mich.)    (72  N.   W.   Rep.   189 

[1897])    553,  579,  612,  620 

Wood  Co.  Pet.  Co.  v.  West  Va.  Trans.  Co. 

(28  West  Va.   210) 283 

Wooden    v.    Mt.    Pleasant    L.    &    Mfg.    Co. 

(Mich.)   (64  N.  W.   Rep.  329) 84,85 

Woodman  v.   Pitman   (79  Me.  456).  .164,  168,  240 

v.  Spenser  (54  N.  H.  507) 449 

Woodruff    v.    Paddock    (N.    Y.    App.)    (29 

N.  E.  Rep.  1021) 650 

Woodruff,  etc.,  I.  Wks.  v.  Adams  (37  Conn. 

233)    8 

Woodruff     Place,     Town     of,     v.     Raschig 

(Ind.)   (46  N.  E.  Rep.  990) 455 

Woods    v.    Hull    (Tex.)     (38    S.    W.     Rep. 

165)    528 

v.  Miller  (52  N.  Y.  Supp.  217) 308 

v.    Moulevatto   C.    &   T.    Co.    (Ala.)    (3 

So.   Rep.   475    [1888]) 627 

Woodward  v.  Aborn   (35  Me.  271) 263 

v.  Atwater  (3  Iowa  61) 465 

v.    Nims    (130   Mass.    70   [1881]), 

547,  550,  552,  576 
Woodworth  v.  Genesee  P.  Co.   (N.  Y.)   (18 

App.   Div.  510) 105,212 

Woodyear  v.   Schaefer  (57  Md.  i).  ..202,  204,  209 

Woolman  v.  Garringer  (i  Mont.  535) 75,76 

Worcester    Gas    Lt.    Co.    v.    Co.    Comm'rs 

138  Mass.   289   [1885]) 101 

Wormser  v.  Brown  (Sup.)   (25  N.  Y.  Supp. 

553)    308 

Worsham  v.  Morgan  (Tex.)   (28  S.  E.  Rep. 

918)    601 

Worth  v.  Dawson  (i  Sneed  (Tenn.)  59) 703 

Worthington   v.    Hylyer    (4   Marr.    R.    196), 

547,  557 
Worthley  v.  Burbanks  (Ind.  Sup.)  (45  N.  E. 

Rep.  779) 521 

Wren  v.  Parker  (Conn.)  (18  Atl.  Rep.  790)  523 
Wright  v.  Syracuse,  etc.,  Ry.  Co.  (Sup.) 

(36  N.   Y.   Supp.  901) 759 

v.   Victoria   (4  Tex.   375) 704 

v.  Woodcock  (86  Me.   113) 62 

Wyandotte  Club  Co.  v.  Sells  (Com.  PI.)   (3 

Ohio  N.    P.   210). 271 

Wyatt  v.  Gt.  W.  Ry.  (6  Best  &  Smith  709)  318 
— —  v.  Larimer  &  Weld  Irr.  Co.  (Colo. 

App.)    (29    Pac.    Rep.    906,    33    Pac.    Rep. 

144)   75.  77 

Wyman  v.  State  (13  Wis.  663) 703 


TABLE   OF  CASES. 


Ixin 


Y. 

Vanish  v.  Tarbox  (Minn.)   (51  N.  W.  Rep.     ' 

1051    [1892]) 573,  578 

Yates  v.   Milwaukee  (U.   S.)   (10  Wall.  497)  421 

v.   Shaw   (24  111.  367) 500 

Yazoo,   etc.,    R.    Co.    v.    Davis    (Miss.)    (19 

So.    Rep.    487) 191 

Yeamans  v.  Yeamans  (99  Mass.  585  [1868])  486 
Yelverton  v.   Steele   (40  Mich.   538  [1879])..  528 

Yetzer  v.   Thoman   (17  Ohio  St.    130) 518 

York  Teleph.   Co.  v.   Keesey  (Com.   PI.)   (5 

Pa.   Dist.   Rep.  366) 8r, 

Young  v.  Conrad  (Ky.)  (38  S.  W.  Rep.  497)  677 

v.    Reubin   (U.   S.)    (i   Ball.    119) 486 

v.   Starkey   (i   Cal.  426   [1851]) 482 

v.  Yarmouth  (Mass.)  (9  Gray  386) 812 

Yunker   v.   Nichols    (i    Colo.    551) 77 


Z. 

Zabraski  v,  Jersey  City,  etc.,  R.  Co.  (13  N. 

J.  Eq.  314) 797 

Zehren  v.  Milwaukee  Elec.  Ry.  &  L.  Co. 

(74  N.  W.  Rep.  538  [1898]) 798 

Zeibold  v.  Foster  (Mo.  Sup.)  (24  S.  W. 

Rep.  155) 579 

Zeilin  v.  Rogers  (21  Fed.  Rep.  103) 522 

Zeller  v.  Southern  Yacht  Club  (34  La. 

Ann.  837) 381 

Ziegele  v.  Richelieu  &  O.  Nav.  Co.  (Sup.) 

(38  N.  Y.  Supp.  1022) 668 

Ziegler  v.  Chapin  (126  N.  Y.  342) 142 

Zimmler,  Adm'r,  v.  San  Luis  W.  Co.  (57 

Cal.  221) 75 

Zirngibl  v.  Calumet  &  C.  Canal  &  Dock 

Co.  (111.  Sup.)  (42  N.  E.  Rep.  431) 528 

Zundel  v.  Baldwin  (Ala.)  (21  So.  Rep.  420)  546 


• 


THE  LAW  OF  OPERATIONS  PRELIMINARY  TO 

CONSTRUCTION  IN  ENGINEERING 

AND  ARCHITECTURE. 


PART  I. 

( 

PROPERTY.       ESTATES    IN,    AND    TITLE    TO, 
REAL   PROPERTY. 


CHAPTER   I. 
INTRODUCTION.      PROPERTY   DEFINED. 

1.  Introduction. — Before  beginning  the  construction  of  an  engineering  or 
architectural  structure  or  plant,  it  is  essential  to  secure  the  land  for  a  site  or 
a  right  of  way  and  those  natural  features  incident  to,  or  contained  in,  the 
land  the  purpose  of  which  it  is  the  prime  object  to  utilize.  Whether  the 
object  be  the  appropriation  of  wealth  contained  in  Mother  Earth,  or  the 
harnessing  and  utilization  of  Nature's  forces,  or  the  development  and 
enjoyment  of  the  industrial,  commercial,  and  traffic  privileges  necessary  to 
the  comfort  of  mankind,  the  first  step  is  to  secure  such  rights  and  privileges. 

Nothing  of  construction  should  be  done  until  these  rights  have  been 
secured  and  their  ownership  or  control  determined  positively.  The  success, 
of  an  enterprise  cannot  be  assured  until  these  questions  are  passed  upon  and 
settled,  and  it  is  determined  by  the  far-sightedness  and  prophetic  discernment 
of  men  of  close  observation  and  study.  Such  questions  are  usually  left  to,, 
and  determined  by,  promoters,  bankers,  business  men,  and  lawyers,  and  it  is 
the  legitimate  business  of  the  last-named  class.  These  men  are  controlled 
chiefly  by  the  strictly  legal,  commercial,  and  revenue-paying  features  of  the 
enterprise  without  regard  to  the  construction  and  operation  features  of  which 
they  know  and  realize  so  little.  The  requirements  of  the  structure  itself, 
the  effects  of  its  operation,  or  its  very  existence  even,  the  things  which  affect 
its  stability,  preservation,  and  life,  what  changes  and  additions  will  be 


§  I.  OPERATIONS   PRELIMINARY    TO    CONSTRUCTION.  2 

necessary  to  its  gro>vih,  development,  and  expansion,  are  considerations  which 
are  too  often  overlooked  and  neglected. 

These  are  legitimate  things  for  the  lawyer  to  consider  if  he  can  be 
brought  to  realize  the  importance  of  them,  which  he  does  not,  but  "  Sufficient 
unto  the  day  is  the  evil  thereof "  is  too  often  his  motto. 

Without  practical  experience  in  engineering  and  architectural  operations, 
or  in  the  management  of  estates  where  large  building  operations  have  been 
carried  on,  the  average  lawyer  has  little  opportunity  to  study  or  observe  what 
are  the  results  and  requirements  that  attend  these  operations.  Moreover, 
lawyers  are  a  very  busy  class  of  men,  absorbed  in  many  different  cases,  with 
varying  conditions  and  circumstances,  and  they  do  not,  and  cannot,  give  to 
one  case  the  close  study  and  observation  that  an  engineer  in  charge  of  work 
can  devote  to  it.  The  erection  of  the  structure  is  the  one  and  perhaps  the 
only  case  in  hand  with  the  engineer  in  charge  of  the  work.  It  receives  his 
careful  inspection  by  day  and  his  thoughtful  study  by  night.  It  is  his  work, 
becomes  a  part  of  his  daily  life  and  of  himself.  How  can  a  lawyer  upon  a 
meagre  statement  of  facts  about  a  subject  (a  structure)  of  which  he  has  only  a 
most  superficial  knowledge,  or  upon  a  cursory  examination  of  matters  and 
phenomena  of  which  he  is  equally  ignorant,  be  expected  to  give  judgment 
that  will  square  with  that  of  an  engineer  who,  with  a  general  knowledge  of 
law,  has  had  time  and  opportunity  to  study  the  case  and  look  up  the  law 
in  regard  to  it  ? 

"Be  sure  you  are  right  and  then  go  ahead"  is  a  good  motto  for  the 
engineering  profession  as  it  is  for  business  men,  and  it  is  applicable  in  many 
more  instances  in  the  daily  practice  of  engineers  and  architects,  contractors 
and  builders,  than  in  any  other  vocation.  "  But  how  are  we  to  know  before- 
hand that  we  are  right  ?  "  ask  these  fabriarchs  of  the  nation's  weal. 

The  successful  undertaking  and  operation  of  an  enterprise  require  the 
thoughtful  consideration  of  many  questions.  In  the  usual  course  of  business 
there  is  a  preliminary  examination  and  report  of  the  engineer  upon  the 
feasibility  of  the  project  and  the  difficulties  attending  its  construction,  an 
estimate  of  the  probable  cost  of  construction  and  operation,  and  the  com- 
parison of  these  with  the  anticipated  revenues,  and  the  clear  presentation  of 
these  subject-matters  to  probable  investors.  This  is  the  scope  of  the  usual 
investigation  as  embodied  in  the  report,  but  the  lawyer  and  engineer  or 
architect  should  have  in  their  private  memoranda  much  that  is  not  embodied 
in  the  report  submitted.  Their  investigation  must  include  much  more.  It 
should  contain  a  review  not  only  of  present  actualities,  but  of  future  possi- 
bilities and  probable  consequences.  It  should  foresee  the  probable  invasion 
of,  or  the  interference  with,  tjie  rights  of  others.  It  should  anticipate  the 
growth  and  expansion  of  the  works,  the  increased  traffic  likely  to  result,  the 
growing  demands  that  may  be  made  upon  the  structure,  alterations  rendered 
necessary  by  change  in  the  motive  power  or  means  employed,  connections 


3  INTRODUCTION.     PROPERTY  DEFINED.  §  2. 

and  terminal  facilities,  the  necessity  of  auxiliary  plans  or  ways  to  supply~or 
promote  traffic,  the  possibility  of  rival  competition,  and  the  thousand  and 
one  questions  which  arise  in  connection  with  these  questions. 

The  first  and  fundamental  acquisition  to  the  government  is  property, 
land,  or  territory,  and  the  first  essential  thing  to  an  engineering  enterprise  is 
property  (land),  the  foundation  upon  which  the  structure  may  stand,  namely, 
a  site — a  site  free  from  defects  of  soil  and  impervious  to  influences  that  may 
undermine  and  destroy  the  works;  a  site  unclouded  with  defects  of  title, 
unencumbered  with  easements  and  burdens  which  provoke  expensive  and 
ruinous  litigation;  a  site  free  from  the  dangers  of  injunction  and  the  em- 
barrassments of  competition. 

These  are  considerations  which  do  not  always  enter  into  the  determination 
of  a  site,  right  of  way,  or  location  for  engineering  works,  yet  when  brought 
to  the  attention  of  business  men  their  importance  is  fully  appreciated,  and 
the  professional  man  or  employee  who  shows  a  due  and  proper  consideration 
for  such  questions  is  pretty  certain  also  to  be  appreciated. 

To  understand  and  realize  the  importance  of  these  questions  requires  a 
fundamental  knowledge  of  the  law  of  property,  of  the  rights  incident  thereto, 
and  of  the  burdens  attendant  thereon. 

Almost  all,  if  indeed  not  all,  of  the  operations  in  engineering  and  archi- 
tectural construction  have  for  their  object  the  improvement  or  utilization  of 
property.  Sometimes  such  operations  require  the  destruction  of  property  or 
of  rights  in  property,  but  this  is  seldom  the  object  of  the  operation.  At  all 
times  they  involve  the  use  of  property,  not  only  for  the  site  of  the  structure, 
but  as  materials  of  construction.  These  questions  must  always  be  considered 
before  construction  work  is  begun,  and  it  is  apparent  that  in  treating  the 
subject  of  the  Law  of  Operations  Preliminary  to  Construction  the  first  con- 
sideration is  that  of  property  itself  and  of  property  rights.  A  large  part  of 
the  book  will  be  devoted  to  the  law  of  those  property  rights  which  must  be 
considered  in  projecting  new  enterprises  and  in  carrying  out  and  completing 
works.  It  will  be  necessary,  therefore,  to  define  briefly  many  of  the  terms 
which  the  reader  will  meet,  such  as  property  in  its  various  characters  and 
conditions,  and  the  kinds  of  property,  together  with  the  means  by  which  it- is 
conveyed,  and  the  estates  therein  created. 

2.  Definition  of  Property. — Property,  in  the  strict  legal  sense,  is  that 
right  to  the  use  and  disposition  of  a  thing  which  one  may  lawfully  exercise  to 
the  exclusion  of  all  other  persons.  The  term  is  often  used  to  indicate  the 
thing  itself  which  is  the  subject  of  the  property,  rather  than  the  intrinsic  right 
itself.  The  word  extends  to  every  species  of  valuable  right  and  interest, 
including  real  and  personal  property,  easements,  franchises,  and  other  incor- 
poreal interests.  It  includes  everything  that  is  the  subject  of  owner- 
ship. 

Property  has  been  defined  as  being  the  right  to  possess,  use,  acknowledge, 


§3-  OPERATIONS  PRELIMINARY   TO   CONSTRUCTION.  4 

and  dispose  of  a  thing.  Labor  has  been  held  to  be  property.  A  person's 
knowledge  which  is  the  result  of  training,  education,  and  application  upon 
the  part  of  the  possessor  has  been  held  to  be  property.  The  profession  of  a 
priest  has  been  held  to  be  his  property,  and  the  prohibition  of  the  exercise  of 
that  profession  without  a  hearing  is  contrary  to  the  law  of  the  land.1  A 
prospective  patent  has  been  held  to  be  property  under  the  law  authorizing  the 
issue  of  stock  in  consideration  of  labor  or  property.2  A  right  of  action  has 
been  held  to  be  property  as  much  as  a  corporeal  possession.3 

A  mistaken  belief  frequently  entertained  by  laymen  is  that  because  one 
owns  a  thing  he  can  make  whatever  use  of  that  thing  he  may  choose.  One 
seldom  can  say  that  he  absolutely  owns  anything.  Land  is  subject  to  taxa- 
tion, easements,  and  other  burdens  too  numerous  to  mention.  Streams  are 
subject  to  water  privileges,  water  rights,  and  easements  not  only  of  riparian 
owners,  but  of  the  public  in  general.  Streets,  though  owned  by  abutting 
owners,  are  subject  to  easements  of  the  public  for  travel,  and  in  some  juris- 
dictions to  numerous  other  burdens  and  easements.  The  owner  of  land  may 
improve  it,  but  frequently  he  is  required  to  conform  to  certain  ordinances  or 
police  requirements,  and  to  maintain  it  in  such  a  manner  as  shall  not  injure 
or  threaten  injury  to  other  persons  or  to  other  estates.  He  may  be  the 
creator  of  a  new  thing,  but  he  must  protect  it  and  be  reasonably  careful  that 
it  does  no  harm  to  others.  The  laws  require  of  him  that  he  shall  treat  his 
own  offspring  with  such  discretion  and  consideration  as  are  in  keeping  with 
good  morals  and  public  policy.  One  can  hardly  be  said  to  be  the  absolute 
owner  of  anything  in  the  sense  that  he  may  make  whatever  use  of  the  object 
of  the  ownership  he  may  see  fit.  Property  in  anything  is  not  absolute,  and 
one  has  not  an  unqualified  control  of  anything  he  may  own  and  possess.  It 
is  the  proper  and  consistent  use  and  enjoyment  of  the  thing  so  as  to  not 
prejudice  the  privileges,  enjoyment,  and  rights  of  others. 

3.  Real  and  Personal  Property. — Property  is  divided  into  two  classes, 
real  and  personal  Real  property  is  property  in  real  things,  and  real  things 
are  such  as  include  lands,  tenements,  and  hereditaments.  An  accurate 
definition  includes  such  things  as  descend  to  the  heir.  The  visible  object 
which  lies  at  the  foundation  of  all  real  property  is  land,  but  all  rights  in  land 
are  not  included  in  real  property.  Tenements  do  not  refer  to  the  physical 
nature,  but  to  the  peculiar  manner  in  which  they  are  held,  the  term  being, 
however,  not  coincident  with  the  word  "  land,"  but  (i)  they  include  lands  in 
so  far  as  the  interests  therein  are  real  property,  and  (2)  larger  than  lands,  in- 
cluding certain  other  rights  capable  of  tenure,  such  as  offices.  Hereditaments 
(such  things  as  descend  to  an  heir)  is  a  larger  term,  but  it  does  not  include 
all  of  the  former,  since  there  are  certain  estates  in  tenements  which  are  in 
their  nature  incapable  of  inheritance,  such  as  an  estate  for  life,  yet  they  have 

1  O'Hara  v.  Stark.  90  Pa.  St.  477.  2  Whitehall  v.  Jacobs,  75  Wis.  479. 

3  Power  v.  Harlow,  57  Mich.  in. 


5  INTRODUCTION.     PROPERTY  DEFINED.  §  $. 

all  incidents  of  real  property.  In  this  country,  both  by  statute  and  common 
law,  the  term  real  estate  is  generally  used  for  the  words  lands,  tenements,  and 
hereditaments.  In  different  States  the  definition  may  vary  slightly,  and  the 
fine  distinctions  are  hardly  worth  going  into  for  the  purpose  of  this  book. 

Hereditaments  include  everything  which  may  descend  to  the  heir  at  the 
death  of  the  owner.  They  are  usually  divided  into  corporeal  and  in- 
corporeal, or,  in  other  words,  into  two  classes,  one  of  which  has  a  material 
existence,  and  the  other  only  an  existence  in  effect,  as  the  right  to  some  profit 
or  use  in  land.  Tenements  properly  means  all  things  that  can  be  held  in 
tenure  at  the  common  law.  It  includes  more  than  the  word  "  lands,"  com- 
prising lands  and  the  rights  issuing  out  of,  and  concerning,  lands. 

4.  Land. — Land  is  the  surface  of  the  earth,  with  whatever  is  attached  to  it 
by  nature  or  by  the  hand  of  man,  and  all  that  is  contained  within  or  below 
it.      Land  comprehends  all  things  of  a  permanent,  substantial  nature,  being  a 
word   of  very   extensive  signification.      As   defined    by   Sir   Edward   Coke,1 
<;  Land  comprehends  in  its  legal  signification  any  ground,  soil,  or  earth  what- 
soever, as  arable  meadows,   pastures,  woods,  moors,  waters,   marshes,  furzes, 
and  heath.     It  legally  includes  also  houses,  castles,  and  other  buildings;  for 
they  consist, ' '  said  he,  ' '  of  two  things :  land,  which  is  the  foundation,  and 
structure  thereupon,  so  that  if  I  convey  the  land  or  ground,  the  structures 
and  buildings  pass  therewith.     Land  hath  also,  in  its  legal  signification,  an 
indefinite  extent,  upwards  as  well  as  downwards.     It  includes  not  only  the 
face  of  the  earth,  but  everything  under  it  or  over  it.      If  a  man  grants  all  his 
lands,  he  grants  thereby  all  his  mines  of  metal  and  other  fossils,  his  woods, 
his  waters,  and  his  houses,  as  well  as  his  fields  and  his  meadows." 

In  like  manner  the  owner  bf  land  is  held  to  be  entitled  to  the  possession 
and  ownership  of  what  naturally  falls  upon  his  land,  such  as  rain,  hailstones, 
etc.  In  the  Supreme  Court  of  Iowa  it  was  held  that  an  aerolite  or  meteor 
which  fell  from  the  sky  was  the  property  of  the  owner  of  the  land  on  which  it 
fell,  rather  than  of  the  person  who  first  found  it  and  took  it  up.2 

5.  Use  of  the  Word  "Land." — The  word  "  land  "  is  sometimes  restricted 
in  its  application,    as  in  mechanics'   lien  laws,    where  certain  priorities  are 
given  and  preferred  to  the  extent  of  the  value  of  the  land  at  the  time  of  the 
making  of  the  contract  with  the  mechanic  or  materialman.     Land  in  such  a 
case  has  been  held  to  mean  only  the  ground  with  such  improvements  upon  it 
as  existed  at  the  time  of  the  execution  of  the  contract  or  mortgage.3 

In  a  statute,  under  a  strict  construction,  the  word  "  land  "  has  been  held 
not  to  include  an  easement.  An  incorporated  waterworks  company  which  was 
empowered  to  lay  pipes  in  the  streets,  roads,  etc.,  and  did  lay  pipes  accord- 
ingly, was  assessed  with  the  land  tax  as  holders  of  land  in  a  district  within 
which  it  had  laid  pipes  down,  but  in  which  it  had  no  other  property.  It  was 

12  Bl.  16.  2See  Chicago  Law  Jour.,  Nov.  24,  1892. 

3  12  Amer.  &  Eng.  Ency.  Law  655. 


§6.  OPERATIONS  PRELIMINARY    TO    CONSTRUCTION.  6 

held  that  it  was  improperly  assessed  with  the  tax.1  The  word  "  land  "  will 
include  an  easement  if  such  construction  appears  to  be  in  accordance  with 
the  intention  of  the  legislature.8 

A  bridge  has  been  held  to  be  land  within  the  meaning  of  the  charter  of  a 
turnpike  company  which  was  required  to  pay  to  the  owners  of  the  land  over 
which  the  road  should  pass  all  damages  sustained,  whether  the  county  owned 
the  fee  of  the  land  in  the  bed  of  the  river  over  which  it  was  erected  or  only 
the  easement  to  maintain  a  bridge  there.3  The  track  of  a  railroad  company 
affixed  to  the  land  is  "  land,"  and  is  liable  to  taxation  even  though  the  fee 
of  the  land  on  which  the  track  is  laid  is  not  included  in  the  conveyance.4 
So  are  the  pipes  and  mains  of  an  aqueduct  company  which  are  laid  through 
fields  and  highways.5  Telegraph-wires  strung  upon  the  poles  of  a  railroad 
company  on  its  right  of  way,  under  an  agreement  by  which  the  telegraph 
company  was  to  operate  the  line  and  the  railroad  company  to  purchase  the 
wires  upon  the  termination  of  the  agreement,  pass  under  a  sale  of  judgment  of 
foreclosure  as  real  estate,  and  the  purchaser  may  restrain  the  telegraph  com- 
pany from  removing  the  wires  by  an  injunction.6 

Land,  within  the  meaning  of  the  word  as  used  in  the  statute  in  reference 
to  property  being  liable  to  taxation  and  assessable  as  such,  has  been  held  to 
include  the  tunnels,  track,  substructure,  superstructure,  stations,  viaducts, 
and  masonry  of  the  New  York  and  Harlem  Railroad,  situated  on  and  under 
Fourth  Avenue,  in  the  city  of  New  York.7  The  court  held  that,  as  regards 
taxation,  it  is  immaterial  whether  a  railroad  is  laid  upon  the  surface,  placed 
upon  pillars,  or  carried  through  a  covered  way  or  tunnel.  The  structure 
adopted  to  sustain  it  or  facilitate  or  protect  its  use  is,  within  the  meaning  of 
the  term,  "  land,"  and  for  it  the  company  is  liable  to  be  taxecl. 

Under  a  statute  relieving  the  track  of  a  railroad  and  the  land  on  which  it 
was  constructed  from  taxation,  and  declaring  that  they  shall  not  be  deemed 
real  estate,  it  was  held  that  this  release  from  taxation  was  limited  to  the 
franchise  or  right  of  way,  and  did  not  include  the  depots,  engine-house,  turn- 
tables, car-house,  and  other  buildings  or  erections.8 

6,  Personal  Property, — Personal  property  embraces  all  objects  and  rights 
which  are  capable  of  ownership,  except  freehold  estates,  lands,  and  incor- 
poreal hereditaments  issuing  therefrom  or  exercisable  within  the  same. 
There  are  certain  kinds  of  personal  property  which  are  intimately  identified 

Governor  v.  Bowley,  17  Q.  B.  360.  5  Willard  v.   Pike(Vt.),  9  Atl.  Rep.  907 

2  Gr.  Western  R.  v.  Swindon  R.  Co.,  52       [1887]. 

L.  J.  R.  Ch.  306;  s.  c.,  53  L.  J.  R.  Ch.  1075.  6  N.  Y.  O.  &  W.  R.  Co.  v.  Western  U.  T. 

3  Freeholders    v.    Redbank    Tpk.    Co.       Co.,  36  Hun  205  [1885]. 

(N-  J-X  3  C.  E.  Green  91.    And  see  States.  7  People  v.   Commrs.  of  Taxes,  101   N. 

Tichenor,  51  N.  J.  L.  345,  and  Cleveland,  Y.  322  [1885]. 

etc.,    Ry.    Co.    v.    Knickerbocker    Trust  8  P.    S.    &   P.   R.    Co.  v.  Saco,  60  Me. 

Co.,  86  Fed.  Rep.  73.  196.     6V,?  .Providence  Bank  v.  Billings,  4 

4  People  v.  Cassity,-46  N.  Y.  46;  Neary  Pet.  (U.  S.)  563,  and  Phila.  &  Wilmington 
v.    Philadelphia,  etc.,    R.    Co.    (Del.),    9  R.   Co.  v.    Maryland,    10    How.    (U.    S.) 
Atl.  Rep.  405  [1887].  393. 


7  INTRODUCTION.     PROPERTY  DEFINED.  §6. 

with  real  property  and  are  subject  to  some  of  the  rules  governing  the  latter. 
These  are:  (i)  heirlooms,  which  are  personal  chattels,  and  descend  to  the  heir 
together  with  the  inheritance  in  accordance  with  custom;  (2)  growing  crops, 
which  pass  to  the  executor  and  not  to  the  heir;  (3)  emblements,  which  are 
the  right  of  the  tenant  to  the  profit  of  his  crops;  (4)  fixtures,  which  are  per- 
sonal chattels  that  a  temporary  possessor  has  annexed  to  the  land  and  that 
by  law  he  may  take  with  him  when  he  leaves;  (5)  several  kinds  of  personal 
property,  such  as  domestic  animals  and  wild  animals  under  certain  qualified 
rights;  (6)  property  in  ships,  governed  by  special  laws  of  registry;  (7)  moneys 
and  special  kinds  of  securities,  such  as  negotiable  paper,  insurance  policies 
and  annuities,  patents,  copyrights  and  trade-marks,  seats  in  exchanges,  debts, 
and  demands,  including  those  of  guaranty  and  suretyship,  shares  of  stock, . 
good-will,  names,  and  proprietary  secrets. 

The  term  ' '  personal  property  ' '  includes  the  same  kind  of  property  as  the 
word  "chattels,"  and  chattels  are  divided  into  two  classes:  chattels  real  and 
chattels  personal.  Chattels  real  are  interests  which  issue  out  of,  or  are  annexed 
to,  real  estate,  and  which  cannot  be  moved  from  place  to  place.  Such  is  a 
lease  of  land  for  a  term  of  years.  It'  is  a  chattel  though  the  rent  be  only 
nominal  and  the  term  be  ninety  or  a  thousand  years.  Any  interest  in  land 
that  is  less  than  a  freehold  is  a  chattel  real. 

A  house  built  upon  blocks  or  pillars  for  permanency,  and  not  to  serve  a. 
temporary  purpose,  becomes  part  of  the  land ;  but  if  it  be  sold  and  removed, 
it  then  becomes  a  chattel.1  If  a  person  enters  upon  the  land  of  another 
without  his  permission  and  builds  a  structure  thereon  in  a  permanent 
manner,  the  structure  will  become  a  part  and  parcel  of  the  land.  When  a 
building  has  been  erected  upon  land,  with  the  consent  of  the  owner,  for  the 
benefit  of  the  builder,  it  will  be  the  personal  property  of  the  builder,  and  it 
will  remain  so  though  the  land  and  building  be  sold  to  different  persons.2 

Chattels  personal  are  things  movable  which  may  be  annexed  to  or  are 
attendant  on  the  person  of  the  owner,  and  may  be  carried  about  with  him. 
Such  are  animals,  household  goods,  money,  jewels,  corn,  garments,  etc. 
The  term  includes  every  kind  of  property  which  lacks  the  two  essentials  of 
real  estate,  viz.,  immobility  and  indeterminate  duration  as  to  time,  and  also- 
such  things  as  are  not  attached  to  real  estate.  Chattels  personal  are  also 
divided  into  corporeal  and  incorporeal  things.  Corporeal  things  include  all 
things  being  in  themselves  capable  of  motion  or  of  being  moved,  and  that 
may  be  perceived  by  the  senses,  and  may  be  seen,  touched,  and  taken  posses- 
sion of.  Animals,  alive  or  dead,  manufactured  goods  or  materials,  and  every- 
thing capable  of  being  attached  and  not  affixed  to  the  soil  are  included  in 
this  class.  Incorporeal  things  are  such  as  a  man  has  not  the  occupation  of, 

Walter  v.  Sample,  71  111.  430;  Railroad  23    Amer.    &     Eng.    Ency.    Law    166, 

v.  Goodwin,  in  111.  273;  Parish  v.  Jones,       citing  New  England  cases. 
8  Cush.  (Mass.)  184. 


§7-  OPERATIONS  PRELIMINARY   TO    CONSTRUCTION.  8 

but  merely  has  the  right  to  occupy,   the  possession  of  which,   however,   he 
may  recover  by  an  action  at  law,  whence  it  is  called  a  chose  in  action* 

7.  Fixtures. — The  subject  of  fixtures  is  one  that  is  of  special  interest  to 
persons  contemplating  construction  work.  Many  structures  erected  and 
many  improvements  undertaken,  are  placed  upon  land  not  owned  absolutely 
by  the  builder  or  owner  of  the  improvement.  Such  structures  may  be  built 
only  for  temporary  uses  or  with  a  view  to  being  removed,  and  it  is  therefore 
important  that  the  property  in  them  be  understood  and  determined. 

A  fixture  is  an  article  which  was  a.  chattel,  but  which,  by  being  annexed  or 
.affixed  to  real  property  by  some  one  having  an  interest  in  the  soil,  becomes 
a  part  and  parcel  of  it.  The  annexation  may  be  actual  or  constructive. 
Removable  fixtures  are  those  which  the  person  annexing  them  to  the  land 
may  legally  remove  against  the  will  of  the  owner  of  the  land. ;  In  ascertain- 
ing whether  or  not  a  particular  thing  is  a  fixture,  the  courts  have  agreed 
upon  certain  rules  to  be  applied  to  decide  if  the  article  in  question  be  a 
fixture.  These  rules  have  been  reduced  to  three,  which  require  (i)  that 
the  thing  in  question  shall  be  actually  annexed  to  the  realty  or  to  something 
pertaining  thereto;  (2)  that  it  should  be  appropriate  to  the  use  or  purpose  of 
that  part  of  the  realty  with  which  it  is  connected ;  and  (3)  that  there  should 
have  been  an  intention  on  the  part  of  the  one  making  the  annexation  that  it 
should  be  a  permanent  accession  to  the  freehold.  The  intention  to  make  the 
annexation  may  be  inferred  from  the  following  facts :  (a)  The  nature  of  the 
article  annexed ;  (b)  the  relation  of  the  party  making  the  annexation ;  (c)  the 
structure  and  mode  of  annexation;  (d)  the  purpose  and  use  for  which  the 
annexation  was  made. 

In  many  cases  the  question  as  to  whether  or  not  the  chattel  could  be 
removed  without  injury  to  the  freehold  or  to  itself  has  been  held  important  in 
deciding  whether  a  certain  article  was  a  fixture  or  not.1  This  rule  is  not  all- 
controlling.  Many  cases  hold  that  the  intention  of  the  party  making  the 
annexation  is  the  chief  element  to  be  considered  in  determining  wrhat  are 
fixtures,  others  that  it  depends  upon  the  expressed  or  implied  under- 
standing of  the  party  concerned,  and  other  cases  hold  that  the  test  is 
the  adaptation  of  the  article  to  the  uses  and  purposes  to  which  the  realty 
is  applied.2 

Whether  or  not  a  particular  article  is  a  fixture  is  a  mixed  question  of  law 
and  fact.  There  is  great  conflict  both  in  the  text-books  and  adjudged  cases 
as  to  what  is  such  an  annexation  of  chattels  to  realty  as  to  make  them  a  part 
of  the  realty  and  to  pass  them  by  a  conveyance  of  the  realty.  Any  attempt 
to  reconcile  the  authorities  of  the  different  states  on  the  subject  would  be  futile, 
and  to  review  them  would  be  an  endless  task.  Some  instances  are  given  which 
will  benefit  engineers,  architects,  and  surveyors,  and  guide  them  in  the  con- 
*8  Amer.  &  Eng.  Ency.  Law  43.  28  Amer.  &  Eng.  Ency.  Law  44. 

*  See  Part  IV,  Sees.  641-861,  infra. 


9  INTRODUCTION.     PROPERTY  DEFINED.  §8, 

sideration  of  other  cases  which  may  come  up  in  their  practice,  but  these  same 
cases  might  be  decided  differently  in  different  states. 

Some  chattels  are  held  to  be  fixtures  though  they  are  not  annexed  to  the 
realty.  Articles,  whether  fast  or  loose,  necessary  or  convenient  for  the  con- 
struction of  one  kind  of  business  and  which  would  be  useless  in  another,  if 
they  be  indispensable  in  carrying  on  a  specific  business  become  a  part  of  the 
realty.  Such  reasoning,  however,  is  not  to  be  applied  to  live  stock  as  upon 
a  farm.  Articles  which  have  been  needed  for  use  in  connection  with  the 
premises,  and  which  are  more  or  less  necessary  to  their  enjoyment,  are  some- 
times held  to  be  annexed  constructively.  A  millstone  detached  from  a  mill 
for  repairs,  or  by  accident,  has  been  held  a  fixture.  Title-deeds,  deer  in 
a  park,  and  fish  in  a  pond  have  been  held  to  belong  to.  and  to  pass  with  the 
estate.  Windows,  doors,  blinds,  Venetian  blinds,  fences,  etc.,  belong  to  the 
land  as  being  constructively  annexed  to  it.  An  engine  actually  affixed  to 
and  in  the  soil,  and  which  cannot  be  removed  without  tearing  down  the 
masonwork  and  house  which  cover  it,  is  a  fixture.  A  steam-engine  and 
boiler  bought  by  the  owner  of  a  mill  and  left  upon  the  ground  with  an  inten- 
tion of  placing  them  in  the  mill  were  held  to  become  a  part  of  the  realty. 
Wood-working  machinery  in  a  sawmill  was  held  to  pass  on  the  sale  of  the 
real  estate.  Engines  and  machinery  for  a  sawmill  erected  by  lessees  under 
agreement  with  the  landlord  that  they  should  have  the  right  to  remove  them 
at  the  end  of  their  term  are  held  as  fixtures  by  the  purchaser  of  their  interests 
in  the  real  estate  under  the  lease.  Machinery,  though  generally  regarded 
as  personal  property,  will,  when  erected  by  the  owner  of  land  for  the  better 
enjoyment  of  the  freehold,  pass  to  his  heir,  and  does  not  belong  to  the 
executor.  When  machinery  goes  to  the  heir,  all  parts  that  belong  to  that 
machinery,  although  capable  of  being  detached  and  of  being  used  in  a  de- 
tached state,  go  with  it.  Looms,  cards,  spinning-frames,  etc.,  fastened  to 
the  floor  in  a  cotton-mill  to  steady  them,  have  been  held  not  fixtures. 
Machinery  annexed  in  a  substantial  manner  to  the  building  has  been  held 
not  a  fixture,  tinless  there  was  a  unity  of  title  to  the  realty.  Electric-light 
wires  fastened  to  poles  in  the  street  and  connecting  with  the  plant  have  been 
held  a  part  of  the  machinery,  and  to  pass  in  a  mortgage  upon  the  lot  upon 
which  the  plant  is  situated. 

8,  Agreements  in  Regard  to  Fixtures, — In  construction  work,  materials 
and  machinery  are  sometimes  purchased  and  delivered  with  the  express 
understanding  and  agreement  that  the  title  therein  shall  not  pass  until  the 
goods  are  paid  for;  and  the  effect  of  such  an  agreement  upon  the  rights  of 
other  parties  is  a  matter  of  interest,  as  well  as  the  effect  upon  the  ownership 
of  the  materials  themselves. 1  Rails  and  other  property  purchased  and  affixed 
to  a  part  of  the  railroad  were  held  by  the  lien  of  the  mortgagee  in  favor  of  a 
good-faith  creditor  as  against  any  contract,  between  the  furnisher  of  the 

1  See  Wait's    Engin.    &  Arch.    Jurisp.,  Sees.  27^1-273. 


§8.  OPERATIONS  PRELIMINARY   TO   CONSTRUCTION  IO 

materials  and  the  railroad  company,  containing  stipulations  that  the  title  to 
the  property  should  not  pass  until  paid  for.1  However,  if  this  contract 
between  the  materialman  and  the  railroad  company  had  been  registered  in 
the  town  or  county  clerk's  office,  so  that  the  mortgagees  or  their  representa- 
tives had  constructive  notice  thereof,  the  case  might  have  been  decided 
differently. 

It  has  been  held  that  intention  of  alteration  will  not  convert  a  chattel  into 
a  fixture.  It  is  not  the  intention  to  make  a  thing  annexed  to  or  placed  upon 
the  freehold  personal  property  that  alters  its  legal  character  as  a  fixture,  but 
the  intention  to  make  a  permanent  or  temporary  annexation.  Erections 
made  by  the  owner  of  real  estate  are  presumed  to  be  permanent.  Machinery 
may  remain  chattels  for  all  purposes  even  though  attached  to  the  freehold  by 
the  owner,  if  the  mode  of  attachment  indicates  that  it  is  set  up  for  more  con- 
venient uses,  and  not  to  make  it  an  adjunct  of  the  building  or  soil. 

Tapestries,  pictures  on  panels,  frames  filled  with  satin  and  attached  to  the 
walls,  statues,  figures,  vases,  and  stone  garden-seats  have  been  held  in  Eng- 
land to  be  fixtures.  The  conveyance  of  a  sawmill  and  appurtenances  passed 
title  to  the  chains,  dogs,  and  bars  which  were  in  place  when  the  conveyance 
was  made.  An  organ  in  a  church  affixed  in  a  recess  made  on  purpose  for  it, 
was  held  a  fixture. 

A  house,  mill,  and  machinery  sold  to  the  owner  of  land  on  condition  that 
they  should  remain  personal  property,  with  title  in  seller  until  paid  for,  do 
not  become  incorporated  in  the  realty  until  the  conditions  are  fulfilled.2 

A  mortgagee  is  entitled  to  buildings  which  are  on  the  premises  of  the 
mortgagor  at  the  time  that  the  mortgage  was  given,  notwithstanding  the  fact 
that  the  life-tenant  and  mortgagor  had  agreed  that  the  buildings  should 
remain  personal  property;  and  the  purchaser  at  sale  on  foreclosure  is  entitled 
to  the  same  forever.3 

In  New  York  it  has  been  held  that  the  fixtures  must  be  of  such  a  nature 
as  to  be  capable  of  becoming  personal  property  in  order  to  subject  them  to 
an  agreement  of  this  kind.  Thus,  a  house  or  building  that  from  its  size  or 
the  materials  of  which  it  is  built  or  the  manner  in  which  it  is  attached  to  the 
land  could  not  be  removed  without  practically  destroying  it,  would  not 
become  a  mere  chattel  by  means  of  any  agreement  that  might  have  been  made 
concerning  it.  So  it  has  been  held  of  the  separate  materials  of  a  building, 
and  of  things  fixed  into  the  wall  which  were  essential  to  its  support.  It 
was  held  impossible  that  they  should  be  subject  to  an  arrangement  between 
the  owners  by  which  they  should  become  chattels.4  Buildings  erected  by  the 

1  Porter  v.  Pittsburg  Steel  Co.  122  U.  S.  2  Harkey  v.  Cain  (Tex.),  6  S.  W.  Rep. 

267;  Dunham    v.   Railroad    Co.,   i  Wall.  637. 

(U.    S.)  254;  Fosdick  v.  Schall,  99  U.  S.  3  Stevens  v.  Rose  (Mich.),  13  West  Rep. 

235-251;  Dillons.  Barnard,  21  Wall.  430;  765. 

Hunt  v.   Bay  State    Iron  Co.,  97   Mass.  4  Ford  v.  Cobb,  20  N.  Y.  344.     And  see 

279.  Fortman  v.  Gupper,  14  Ohio  St.  558. 


II  INTRODUCTION.     PROPERTY  DEFINED.  §8. 

license  of  an  owner  of  the  land  by  another  person  upon  the  land  of  the 
licensor  pass  to  the  good-faith  purchaser  of  the  land  who  has  no  knowledge 
of  the  license.1  When  personal  property  is  wrongfully  annexed  to  the  realty 
by  the  owner  of  the  land,  the  remedy  for  the  wrong  is  against  the  wrong- 
doer, and  not  against  an  innocent  purchaser  of  the  land.2  A  building  con- 
structed upon  land  is  real  property,  and  it  is  not  converted  into  personal 
property  by  being  blown  down  by  a  tempest.  The  fragments  still  belong  to 
the  realty.3 

Railroad  ties  wrongfully  annexed  to  the  right  of  way  by  a  subcontractor 
become  a  part  of  the  railroad,  and  trover  will  not  lie  against  the  railroad 
company  for  their  conversion.4  Fixtures  erected  by  one  person  upon  the 
land  of  another,  by  license  or  agreement,  pass  under  conveyance  of  the  land 
to  the  purchaser  in  good  faith. 5 

Agreements  are  frequently  made  'between  the  parties  who  may  lay  claim 
to  the  fixtures  to  determine  the  character  of  annexations  to  real  estate.  Such 
contracts  frequently  make  personalty  what  the  law  regards  as  realty,  and 
what  the  law  regards  as  personalty  they  seek  to  make  realty,  and  it  is  often 
held  that  such  agreements  will  be  enforced.  This  purpose  is  subject,  how- 
ever, to  several  modifications.  An  agreement  between  an  owner  of  land  and 
the  owner  of  fixtures  that  the  latter  shall  remain  personal  property  cannot 
affect  the  rights  of  a  bona-fide  purchaser  of  the  land.6  In  general,  it  may  be 
said  that  fixtures  pass  to  the  purchaser  in  good  faith  of  real  estate,  notwith- 
standing an  agreement  between  the  owner  of  the  land  and  the  seller  of  the 
fixtures  that  they  shall  remain  personal  property.  A  purchaser  in  good  faith 
must  not,  of  course,  have  had  notice  of  such  an  agreement,  because  with  such 
notice  he  is  not  a  bona-fide  purchaser.  Such  agreements  are  valid  between 
the  parties  making  them  when  the  rights  of  third  persons  are  not  affected.7 
Such  an  agreement  generally  will  be  governed  by  the  statute  of  frauds,8  but 
some  cases  have  held  that  the  agreement  may  be  proven  by  parol  evidence.9 

Where  a  purchase-money  mortgagee  verbally  agreed  with  the  grantee  of  the 
mortgagor  that,  on  payment  to  him  of  a  sum  sufficient  to  entitle  the  grantor 
to  the  conveyance,  he  might  remove  the  plant  of  a  marine  railway  on  the 

1  Price  v.  Case,  10  Conn.  375.    And  see  derson,  33    Kan.  264;  Hoax  v.   Seat,  26 
Priestly  v.  Johnson,  67  Mo.  632.  A/soTap-  ^  Mo.   178;   Havana.  Emery,  33   N.  H.  66; 
ley  v.  Smith,  18  Me.  12.  *  Powers  v.  Dennison,  30  Vt.  752. 

2  Voorhees  v.  McGinnis,  48    N.  Y.  278.  6  Roswand  v.  Anderson,  33  Kan.   264; 
See  also  Fryatt  v.   Sullivan   Co.  (N.  Y.),  Bartholomew    v.    Hamilton,     105    Mass. 
5  Hill.  116;  Frankland  v.  Moulton,  5  Wis.  239;  Lacustrine  Fer.  Co.  v.  L.  G.  &  Fer. 
i;   Woodruff,    etc.,    I.    Wks.    v.    Adams,  Co.,  82  N.  Y.  476;  Smith  v.  Wagoner,  50 
37  Conn.  233;  Mott  v.   Palmer,   i  N.  Y.  Wis.  155. 

564,    Knowlton    v.    Johnson,    37    Mich.  7  Badger  v.  Batavia  Paper  Co.,  70  111. 

47.  302;  Sisson    v.    Hibbard,    75   N.   Y.   542; 

3  Rogers  v.   Gillinger  (Penn.),  6  Amer.  Eaves    v.    Estes,    10   Kan.    314;  Otto  v. 
Law  Reg.  430  [1858].  Specht,  n  Cent.  Rep.  244. 

4  Detroit  &   B.  C.   R.  Co.  v.   Bush,  43  8  Myers  v.  Schemp,  67  111.  469;  Trulls. 
Mich.  571.  Fuller,  28  Me.  545. 

5  Prince  v.  Case,  10  Conn.   375;  Wilgus  9  Frederick     v.    Devol,     15     Ind.     357; 
».  Gettings,  21  la.   177;  Roswand  v.  An-  Walker  v.  Schindel,  58  Md.  360. 


§  8.  OPERATIONS  PRELIMINARY   TO   CONSTRUCTION.  12 

premises,  it  was  held  that  the  agreement  was  binding.1  Fixtures  erected  by  a 
person  in  possession  of  land  under  a  contract  of  purchase  from  the  owner 
become  a  part  of  the  realty.  * 

Without  an  expressed  agreement  or  a  stipulation  which  permits  the 
removal  of  fixtures  after  the  expiration  of  the  term,  fixtures  must  be  removed 
during  the  time  for  which  premises  are  rented  and  while  the  relation  of  land- 
lord and  tenant  exists  under  the  original  lease.  It  does  not  matter  whether 
the  lease  expires  or  is  terminated  by  re-entry  on  forfeiture.  When  the 
tenancy  is  uncertain  as  to  length  of  time,  as  when  it  depends  upon  a  con- 
tingency such  as  tenancy  for  life  or  at  will,  the  law  allows  a  reasonable  time 
for  the  removal  of  fixtures.  A  tenant  who  goes  upon  the  premises  after  his 
lease  is  terminated  is  a  trespasser.  If  a  new  lease  is  taken  for  the  same 
premises,  which  is  to  date  from  the  expiration  of  the  old  lease,  without  stipu- 
lating for  the  removal  of  fixtures  erected  by  him  during  the  tenancy  which 
has  expired,  he  cannot  remove  them  at  the  end  of  the  renewed  lease. 3  The 
act  of  leaving  fixtures  on  the  premises  after  the  expiration  of  the  term  leads  to 
the  presumption  that  they  are  abandoned  to  the  landlord.  This  presumption 
may  be  rebutted  by  proof  of  an  oral  agreement  to  remove  them  after  the 
expiration  of  the  term. 

If  a  tenant  is  prevented  by  the  owner  of  the  land  from  removing  his 
fixtures  within  the  time  allowed  by  law  for  their  removal,  trover  will  lie  in 
favor  of  the  tenant.  If,  however,  fixtures  are  allowed  to  remain  after  the 
expiration  of  the  lease  and  the  time  allowed  by  law,  it  has  been  held  that  the 
tenant  could  not  maintain  an  action.  The  action  will  also  lie  in  favor  of  the 
owner  of  the  land  after  the  unlawful  removal  of  fixtures  by  the  tenant.  If 
not  permanently  annexed  to  land,  the  owner  may  bring  an  action  for 
replevin.  An  action  of  ejectment  has  been  allowed  to  enforce  the  agreement 
for  the  common  use  of  fixtures  erected  at  the  joint  expense  of  tenants  in 
common.  An  injunction  will  be  granted  to  restrain  a  mortgagor  or  his 
grantee  from  removing  fixtures  that  are  permanently  annexed  to  the  freehold.4 

The  courts  and  text-book  writers  are  not  agreed  on  the  question  as  to 
whether  or  not  railroad  rolling-stock  is  personal  property  or  a  fixture.  The 
tendency  seems  to  be  to  regard  them  as  property  fixtures.5  In  Arkansas, 
Missouri,  Nebraska,  New  Hampshire,  New  York,  Ohio,  Texas,  and  West 
Virginia,  railway  rolling-stock  is  regarded  as  personalty.  In  Illinois,  Ken- 
tucky, and  Georgia  it  is  covered  by  a  mortgage  on  the  railroad;  in  Wisconsin 
it  is  by  statute  a  fixture.6 

*: Tyson  v.  Post  (N.  Y.),  15  N.  E.  Rep.  *  See  8  Amer.  &  Eng.  Ency.  Law  65. 

316  5  Williamson  v.   N.  J.  So.   Rep.  Co.,  6 

2  8  Amer.  &  Eng.  Ency.  Law  57.  Cent.  L.  J.  381  [1878],  many  cases  cited. 

8  8  Amer.  &  Eng.  Ency.  Law  63.  68  Amer.  &  Eng.  Ency.  Law  64. 


CHAPTER  II. 
OWNERSHIP   OF   LANDS.     ESTATES. 

11.  Estates. — For  the  purposes  of  this  book,  an  estate  in  land  may  be 
divided  into  two  general  classes,  viz.,   (i)  exclusive  or  entire,  and  (2)  special 
or  limited,   and  without  reference  to  the  period  of  holding.     If  one  has  the 
exclusive  enjoyment  of  all  the  rights,  interests,  and  profits  of  an  estate  he  i& 
the  owner  in  fee  simple,  and  then  his  ownership  is  exclusive  and  entire.     If, 
on  the  other  hand,  he  has  only  a  special  or  limited  right  to  the  enjoyment  of 
an  estate,  then  it  belongs  to  the  second  class.     This  book  will  have  largely  to- 
do  with  the  second  general  class  of  estates.     Such  are  rights  to  certain  profits, 
interests,  and  rights  in  land,  as  those  of  the  soil,  minerals,  water,  oil,  gas,  or 
vegetable  growths;  or  of  any  rights  of  way  upon,  over,  or  through  the  lands.* 

Real  property  or  real  things  are  owned,  held,  or  possessed  by  one  or 
several  persons  or  parties  in  varying  degrees,  natures,  extents,  and  interests, 
which  are  called  estates.  These  are  classified  as  follows :  estate  of  freehold ; 
estate  of  inheritance;  estate  in  fee;  estate  tail;  estate  for  life: — estate  for  the 
life  of  another,  curtesy,  dower,  homestead;  estate  for  years,  estate  at  will,, 
estate  from  year  to  year;  joint  estates,  joint  tenancy,  tenancy  in  common, 
coparcenary,  estate  by  entirety,  estate  in  severalty;  estate  on  condition — 
mortgage;  estate  in  remainder;  estate  in  reversion;  estate  in  possession,  and 
estate  in  expectancy.1 

For  the  purposes  of  this  book,  it  is  not  required  to  go  into  an  exhaustive 
treatment  of  the  subject  of  estates.  A  general  explanation  of  those  usually 
met  by  promoters  and  constructors  of  works  should  suffice.  If  the  estates  in 
lands  upon  which  it  is  proposed  to  erect  works  is  anything  but  the  simplest 
estates,  the  questions  involved,  or  likely  to  arise,  should  be  referred  to 
counsel  for  advice. 

12.  Estate  of  Freehold. — An  estate  of  freehold  is  an  estate  of  inheritance 
or  for  life  or  for  some  indeterminate  period  in  real  property.     It  is  an  estate 
supposed  to  be  that  of  a  free  man,  and  nothing  less  than  a  life  estate  falls 
within  that  class.     The  peculiar  feature  of  such  an  estate  is  that  it  lasts  for  an 
uncertain  length  of  time.     A  term  for  a  certain  number  of  years,  therefore,  is 

1  6  Amer.  &  Eng.  Ency.  Law  875. 
*  See  Part  II,  Sees.  51-360,  infra. 

13 


§I3«  OPERA  7'IONS  PRELIMINARY   TO    CONSTRUCTION.  14 

not  an  estate  of  freehold.     The  word  is  used  to  designate  the  quantity  of  an 
estate  rather  than  the  quality  of  the  ownership. 

13.  Estate  of  Inheritance. — Such  an  estate  is  an  estate  in  lands  that  may 
descend  to  the  heirs  of  the  owner.     They  include  estates  in  fee  and  estates  in 
tail. 

14.  Estate  in  Fee  Simple. — This  is  the  largest  estate  in  land  known  to 
the  law.     It  is  an  estate  of  inheritance  unlimited  in  duration.     The  owner  of 
an  estate  in  fee  simple  is  often  said  to  possess  the  fee  of  the  property.      One 
who  owns  the  fee  of  a  piece  of  land  has  full  power  to  dispose  of  it  at  any  time 
during  his  life.     If  not  disposed  of,  at  his  death,  it  goes  to  his  heirs.     To-day 
an  estate  in  fee  cannot  be  created  anew,  but  the  rules  formerly  applied  to  the 
creation  of  such  estates  are  now  applied  to  their  transfer.      It  is  absolutely 
•essential  to  the  creation  or  transfer  of  an  estate  in  fee  by  deed  that  the  con- 
veyance  be   expressed   to   the   grantee   and   his   heirs.     Without    the   word 
* '  heirs ' '   the  estate  conveyed  will  be  merely  an  estate  for  the  life  of  the 
grantee.     This  rule  is  not  strictly  applied  in  wills,  however,  and  any  words 
which  show  an  intention  to  mean  heirs  will  pass  the  fee. 

In  America  the  rule  forbidding  the  transfer  of  property  in  fee  without 
the  use  of  the  word  ' '  heirs  ' '  has  been  frequently  ignored  in  deeds  and  leases 
by  statute.  A  conveyance  to  a  corporation  does  not  require  the  word 
*  *  htiirs, ' '  and  a  conveyance  to  a  trustee  does  not  require  any  particular  form 
to  create  the  trust.  A  trustee  may  take  the  fee  without  the  word  ' '  heirs, ' ' 
where  a  less  estate  would  not  satisfy  the  purpose  of  the  trust;  and  vice  versa, 
the  trust  estate  does  not  continue  in  equity  any  longer  than  is  necessary  to 
accomplish  the  trust.  If  a  devise  of  lands  be  personal  and  with  the  payment 
of  money,  the  devisee  takes  the  fee,  whatever  the  expression  used.  A  court  of 
equity  will  sometimes  dispense  with  the  use  of  the  word  "heir."  By  the 
rule  in  Shelly 's  case,  an  estate  given  to  a  man  for  life,  with  the  remainder  to 
his  heirs,  becomes  an  estate  in  fee  directly  in  the  ancestor.  The  rule  applies 
only  where  the  word  "  heirs  "  or  its  equivalent  is  used,  and  the  intention  of 
the  grantor  must  be  ascertained  by  the  ordinary  rules  of  construction.  In 
some  states  this  rule  is  abolished  and  the  heirs  take  a  contingent  remainder. 

An  estate  is  sometimes  said  to  be  in  fee  which  is  determinable  when  it  is 
liable  to  be  determined  by  some  act  or  event.  In  such  case  it  is  deemed  a 
fee  because  there  is  a  possibility,  if  not  a  probability,  that  it  may  last  forever. 

15.  Estates  Tail. — If  an  estate  of  inheritance  be  limited  to  a  usual  or 
particular  class  of  the  issue  (offspring)  of  a  grantee,  it  is  a  conditional  fee  and 
is  called  an  "estate  tail."  If  the  issue  fail,  the  estate  reverts  to  the  grantor. 
Such  an  estate  is  inalienable,  but  has  all  the  other  characteristics  of  a  fee 
simple.  The  proper  words  of  limitation  in  the  creation  of  an  estate  tail  are 
that  it  shall  go  to  the  heirs  of  the  body,  and  the  word  ' '  heirs  ' '  is  necessary 
in  a  deed,  while  an  equivalent  expression  is  allowed  in  a  will.  An  estate  tail 
is  either  general  or  special.  It  is  general  when  it  is  limited  to  the  heirs  of 


15  OWNERSHIP   OF  LANDS.     ESTATES.  §  1 6. 

the  body,  and  special  when  the  limitation  is  to  a  special  class  of  such  heirs, 
i.e.,  the  heirs  by  a  certain  wife  or  to  the  male  or  female  heirs  of  the  body. 
In  many  states  of  this  country  estates  tail  are  abolished,  and  fines  and 
recoveries  by  which  the  restrictions  against  alienation  were  defeated  have  been 
abolished  or  have  never  existed  in  this  country.  An  estate  tail,  however, 
may  be  barred  by  deed.  All  fees  in  tail  have  been  either  abolished  or  seriously 
modified  in  this  country,  and  it  is  doubtful  if  they  would  be  recognized  in 
jurisdictions  where  the  statutes  are  silent  upon  the  subject. 

An  estate  tail  in  personal  property  cannot  exist,  and  an  attempt  to  create 
such  an  estate  carries  an  absolute  property. 

16.  Estates  for  Life. — An  estate  for  life,  as  the  words  indicate,  is  an 
interest  whose  extent  is  limited  for  the  life  or  lives  of  certain  persons.  The 
term,  includes  all  estates  that  may  last  during  the  life  of  the  tenant,  although 
they  may  be  determined  at  an  early  time.  Determination  is  in  such  case 
uncertain,  as  the  contingency  may  never  happen.  An  estate  for  life  in  its 
broadest  sense  is  every  estate  not  of  inheritance,  without  a  fixed  limit. 
Estates  for  life  are  divided  into  two  classes,  those  created  by  the  act  of  law 
and  those  created  by  the  act  of  the  parties.  In  the  first  class  are  those  of 
dower,  curtesy,  and  homestead.  These  will  be  described  in  a  later  section, 
to  which  the  reader  is  referred.  *  In  the  second  class,  estates  are  either  for 
the  life  of  the  grantee  or  for  the  life  of  some  other  person.  Estates  of  the 
latter  kind  are  known  as  estates  pur  autre  vie. 

Estates  pur  autre  vie  are  not  common  in  this  country,  but  they  sometimes 
occur  where  a  tenant  for  his  own  life  conveys  his  estate  to  third  persons.  He 
cannot  convey  more  than  he  has,  and  his  grantee  therefore  takes  the  estate 
during  the  life  of  the  grantor.  If  the  tenant  died  during  the  life  of  the  grantor 
at  common  law,  the  balance  of  the  estate  went  to  the  first  person  who  took  it, 
who  was  termed  a  general  occupant.  If  the  original  gift  were  made  to  the 
tenant  and  his  heirs,  the  heirs  took  the  estate  as  special  occupants.  In 
England,  if  there  be  no  special  occupant,  the  estate  went  to  the  executors  as 
personal  property,  unless  it  has  been  disposed  of  by  will.  This  rule  has  been 
adopted  in  this  country  except  in  a  few  states,  where  the  life  estate  descends 
as  real  estate.  At  common  law  no  words  of  limitation  were  necessary  to 
create  an  estate  for  life,  but  now,  in  those  states  whereby  the  statute  passes 
without  the  words  of  inheritance,  the  intention  to  create  an  estate  for  life 
must  be  clearly  expressed.  A  tenant  for  life  may  convey  his  interest  unless 
restrained,  and  can  grant  his  whole  estate,  or  he  may  grant  any  number  of 
smaller  estates,  all  together  not  to  exceed  his  own  estate.  He  cannot  convey 
more  than  his  own  interest  unless  he  resorts  to  the  old  common-law  feoff- 
ment,  in  which  case  he  can  convey  a  fee,  but  he  works  a  forfeiture  of  his  own 
estate  by  so  doing.  A  tenant  for  life  cannot  gain  a  title  by  adverse  posses- 
sion, nor  can  a  stranger  during  the  tenancy  for  life  acquire  rights  by  adverse 

*  See  Sec.  17,  infra. 


§  I/.  OPERATIONS  PRELIMINARY   TO    CONSTRUCTION.  1 6 

possession,  because  the  remainderman  has  not  the  right  to  possession  until  the 
death  of  the  tenant  for  life,  and  he  then  has  a  statutory  period  of  twenty  years 
(more  or  less)  in  which  to  bring  his  action  to  recover  possession  of  the 
estate. 1 

A  life  estate  may  be  created  in  personal  property.  If  the  articles  be 
specified,  the  donee  is  entitled  to  the  possession  on  signing  an  inventory  and 
receipt  to  the  executors  acknowledging  the  right  of  the  remainderman.  If 
there  be  danger  of  waste  of  goods,  security  may  be  required  of  the  tenant  for 
life.  If  the  bequest  be  of  money  or  stocks,  the  executor  may  hold  the  same 
invested,  and  will  pay  the  income  to  the  tenant  for  life.  If,  however,  the 
things  bequeathed  be  such  as  are  consumed  by  use,  tne  bequest  is  an  absolute 
gift. 

17.  Dower,  Curtesy,  and  Homestead. — Dower  is  a  certain  estate  of  a  wife 
in  the  real  property  of  her  husband.  At  common  law  it  was  a  life  estate  in 
one-third  of  all  the  legal  estates  of  inheritance  which  the  husband  owned  at 
any  time  during  the  wife's  marriage  to  him.  Dower  in  the  several  States  of 
the  United  States  has  been  changed  by  statute,  and  in  some  States  it  is  an 
estate  only  in  name.  It  attaches  to  all  hereditaments,  corporeal  and  incor- 
poreal, which  savor  of  realty.  They  attach  to  franchises,  as  a  market,  a  mill, 
a  ferry,  and  to  mines  already  opened,  to  land  covered  by  water,  to  turpentine- 
trees  boxed  by  husband,  etc.  There  is  no  dower  in  shares  of  stock  in 
corporations  generally,  nor  in  fruits,  grass,  and  spontaneous  productions  of 
the  soil  growing  at  time  of  husband's  death.2 

Curtesy  is  an  estate  for  life  created  by  law  which  a  husband  holds  in  an 
estate  of  inheritance  in  severalty,  in  coparcenary,  or  in  common,  of  which  the 
wife  was  seized  at  any  time  during  their  marriage,  provided  the  wife  has  had 
children  born  alive  who  could  possibly  have  inherited  the  same  estate  as  heir 
to  the  wife.  Four  requisites  must  exist,  viz.:  (i)  there  must  have  been  a 
legal  marriage;  (2)  the  wife  must  have  been  seized  of  the  estate  during  her 
married  life;  (3)  there  must  have  been  issue  capable  of  inheriting  the- estate; 
(4)  the  wife  must  be  dead. 

Homestead,  generally  speaking,  is  the  house  and  land  constituting  a  family 
residence,  but  in  law  it  is  a  family  residence,  exempt  from  forced  sale  by 
statutory  law.  The  estate  to  which  the  homestead  is  exempt  from  forced  sale 
varies  in  different  states,  as  it  is  a  protection  created  by  statute.  It  is  a 
measure  to  abridge  the  right  of  creditors  to  take  a  certain  interest  reserved  to 
the  debtor  or  his  family.  It  confers  no  right  of  property  upon  the  debtor,  for 
such  a  law  would  be  unconstitutional. 

In  making  conveyances  care  must  be  taken  to  consider  dower,  curtesy,  and 

homestead  interests,  and  to  secure  such  a  release  of  these  life  interests  as  shall 

give  to  the  grantee  a  clear  title  or  one  which  shall   answer  the  purposes  to 

which  the  estate  is  to  be  employed.     This  is  done  by  having  the  wife  of 

16  Amir.  &  Eng.  Ency.  Law  880-882.  2  5  Amer.  &  Eng.  Ency.  Law  890-892. 


17  OWNERSHIP  OF  LANDS.     ESTATES.  §  19. 

husband  execute  the  conveyance  one  with  the  other,  and  to  effect  a  release  of 
homestead  rights  by  a  deed  or  by  a  clause  inserted  in  the  deed  of  conveyance. 

18.  An  Estate  for  Years. — This  is  an  interest  in  the  land  granted  for  a 
definite,  fixed  time  on  certain  agreed  conditions.      The  interest  is  created  by  a 
contract  called  a  lease,  and  originally  the  tenant's  right  was  merely  a  right  of 
action  on  the  contract.     This  was  later  changed  into  an  actual  estate,  in  the 
land.     The  lease  is  a  chattel,  and  passes  to  the  personal  representatives  of  the 
tenant  and  not  to  his  heirs.     The  term  * '  years  ' '  is  merely  descriptive,  and  the 
estate  may  be  for  any  time,  i.e.,  a  month. 

The  duration  of  an  estate  must  be  fixed  and  certain,  and  the  term  may 
begin  at  any  time  in  the  future  not  beyond  the  limit  laid  down  by  the  rule 
against  perpetuities.  No  especial  words  are  necessary  to  create  an  estate  for 
years.  ''Demise,"  "grant,"  and  "let"  are  the  most  common,  but  any 
form  of  words  showing  the  intention  to  transfer  the  possession  for  a  certain 
length  of  time  is  sufficient. 

An  estate  for  years  may  be  terminated  by  the  eviction  of  the  tenant  by  the 
lessor,  or  by  a  release  or  a  surrender  of  the  premises  by  the  lessee  to  the 
lessor.  If  the  premises  are  destroyed  by  fire  or  otherwise  rendered  untenant- 
able, that  in  itself  is  no  reason  for  terminating  the  tenancy.  The  covenant  to 
pay  rent  holds  unless  the  rule  has  been  modified  by  statute,  as  is  the  case  in 
many  states.  A  surrender  of  the  premises  to  the  landlord  extinguishes  the 
rent,  but  the  abandonment  by  the  tenant  does  not  amount  to  a  surrender 
unless  the  landlord  assents  to  it.  A  surrender  io  accomplished  by  operation 
of  law  when  the  tenant  takes  a  new  lease  the  enjoyment  of  which  is  incom- 
patible with  the  existence  of  a  prior  lease,  or  when  the  landlord's  assent  to 
the  abandonment  of  the  tenant  is  shown  by  some  act  inconsistent  with  the 
prior  tenancy. x 

19.  Description  of  Premises  in  a  Lease. — A  proper  description  of  leased 
premises  should  be  inserted  in  a  lease    in  order  to  pass  all  the   premises 
intended  to  give  effect  to  the  instrument.     If  the  lease  does  not  describe  the 
premises  with  a  reasonable  certainty,  it  is  void.     A  lease  of  ten  acres  of  land 
in  a  certain  section  was  held  not  to  designate  what  ten  acres  was  intended, 
and  it  was  therefore  void  for  uncertainty. 2  * 

The  description  of  the  leased  premises  need  not  specify  all  the  particulars 
of  the  subject-matter.  What  is  accessory  to  the  part  described  will  be 
included,  as,  for  example,  the  general  description  of  a  farm  will  include  the 
buildings  appertaining  to  it. 

In  determining  what  is  included  under  the  lease,  all  parts  of  it  must  be 
considered.3 

*6  Amer.  &  Eng.  Ency.  Law  886.  3  12  Amer.  &  Eng.  Ency.  Law  983,  and 

2  Patterson   v.    Hubbard,    30    111.    201;       cases  cited. 
Dingman  v.  Kelley,  7  Ind.  717. 

*  See  Sees.    541-570,   infra. 


§  2O.  OPERATIONS  PRELIMINARY    TO    CONSTRUCTION.  1 8 

20.  Estate  at  Will. — An  estate  at  will  is  an  estate  in  land  which  may  be 
determined  by  either  party  at  will,  and  it  arises  only  on  the  actual  possession 
of  the  tenant.  It  may  be  ended  by  either  party  showing  an  intention  to 
terminate  the  tenancy  or  doing  any  act  that  is  inconsistent  with  the  relation  of 
landlord  and  tenant.  Under  an  estate  at  will  a  tenant  has  no  interest  that  he 
can  convey.  In  fact,  what  interest  he  has  is  terminated  by  a  conveyance 
either  by  himself  or  his  landlord;  it  is  ended  by  the  death  of  either  party. 
When  a  tenancy  at  will  is  terminated  by  the  landlord  the  tenant  may  have  a 
reasonable  time  to  remove  his  goods,  crops,  and  stock,  but  the  tenant  is  not 
entitled  to  a  formal  notice  to  leave.  A  demand  for  possession  ends  the 
tenancy. 

On  account  of  the  hardships  arising  to  the  lessee  under  such  laws,  the 
courts,  by  process  of  judicial  legislation,  have  refused  to  recognize  the  deter- 
mination of  the  estate  at  will  where  the  rent  was  reserved  and  paid  without 
due  notice  being  given  by  the  landlord  who  desired  to  end  the  tenancy. 

A  class  of  estates  called  "  estates  from  year  to  year"  has  been  created  in 
this  way,  and  they  continue  for  an  uncertain  number  of  fixed  periods  which 
may  be  terminated  only  by  giving  due  notice.  The  length  of  these  periods  of 
time  is  regulated  by  the  manner  of  reservation  and  rent.  If  the  rent  is  annual, 
the  term  continues  for  a  year;  if  quarterly,  for  a  quarter,  etc.  This  law  has 
been  generally  adopted  in  America,  except  in  the  states  of  Maine  and 
Massachusetts,  where  tenancies  at  will  still  exist.  Leases  by  the  month  are 
also  included  in  the  definition  from  year  to  year,  and  in  all  cases  of  such 
estates  notice  for  a  reasonable  time  is  required  before  the  termination  of  the 
tenancy.  The  length  of  time  for  such  notice  is  frequently  fixed  by  the 
statute.  If  the  rent  is  paid  monthly,  a  month's  notice  is  usually  required, 
and  if  no  notice  be  given,  the  tenancy  continues  for  another  term,  and  so  on. 
The  courts  are  likely  to  construe  all  general  or  doubtful  tenancies  as  estates 
from  year  to  year,  and  under  the  statutes  of  frauds  parol  leases  are  construed 
to  be  estates  from  year  to  year  by  the  payment  of  rent  or  by  other  circum- 
stances which  indicate  that  such  was  the  intention  of  the  parties. 

21.  Estate  at  Sufferance. — This  is  an  estate  which  a  tenant  holds  where 
he  has  come  lawfully  into  possession  of  the  land  and  holds  over,  after  his  lease 
has  terminated,  without  the  assent  of  his  landlord  either  expressed  or  implied. 
The  original  possession  must  have  rested  on  an  agreement  of  the  parties  or  by 
permission  of  the  landlord,  or  it  becomes  an  estate  at  will  or  an  estate  from 
year  to  year.      The  payment  of  rent  may  confer  a  tenancy  at  will   or  from 
year  to  year.      The  estate  is  created  by  implication  of  law  and  by  the  courts 
to   prevent   an   adverse   possession   when   the   original   tenancy  is  terminated 
without  the  knowledge  of  the  owner.      The  tenant  cannot  deny  his  landlord's 
title  nor  hold  adversely  to  him.      He  is  not  liable  for  rents. 

22.  Estate  in  Possession — Estate  in  Expectancy. — In  regard  to  the  time 
of  their  enjoyment,  estates  are  either  in  possession  or  in  expectancy.      An 


19  OWNERSHIP   OF  LANDS.     ESTATES.  §  24. 

estate  in  possession  gives  a  person  a  right  of  present  enjoyment,  while  an 
estate  in  expectancy  is  one  which  cannot  be  had  until  a  future  time.  An 
estate  of  freehold  is  said  to  be  in  possession  although  it  be  subject  to  an 
existing  prior  chattel  interest.  Estates  in  expectancy  include  reversions, 
remainders,  and  future  interests. 

23.  Estate  in  Reversion. — A  reversion  is  the  interest  of  a  grantor  of  land 
who  has  conveyed  an  interest  which  is  less  than  his  whole  interest.      It  is  a 
right  to  land  after  a  particular  estate  that  has  been  conveyed  is  determined. 
It  is  a  present  vested  interest  in  land  although  the  time  of  possession  is  post- 
poned.    A  grant  of  a  fee  simply  conveys  an  absolute  interest,  and  therefore 
there  can  be  no  reversion  in  the  grantor.     A  reversion  may  be  assigned  or 
devised,  or  it  may  descend  to  the  heirs  of  the  grantor.     There  is  no  curtesy 
or  dower  in  a  reversion  unless  the  particular  estate  is  less  than  a  freehold,  or 
unless  the  owner  of  the  reversion  comes  into  possession  before  his  death. 

24.  Estate  in  Remainder. — A  remainder  is  a  future  estate,  in  lands  of  any 
degree,  which  is  preceded  and  supported  by  a  particular  estate  in  possession. 
A  remainderman  must  have  possession  immediately  upon  the  determination 
of  a  prior  estate  and  which  is  created  at  the  same  time  and  by  the  same  con- 
veyance.     The   remainder  is   distinguished   from   the  reversion    because   the 
former  is  always  granted  to  a  third  person  and  is  not  an  estate  in  the  grantor. 
The  remainder  of  a  particular  estate  must  pass  from  the  grantor  at  the  same 
time  that  the  particular  estate  is  granted.     The  remainder  must  also  vest  in  the 
remainderman  during  the  existence  of  the  particular  estate  or  at  the  moment 
it  comes  to  an  end.     There  may  be  a  succession  of  remainders  as  often  as 
the  particular  estate  ends,  and  the  remainder  then  vests  in  possession  and 
becomes  in  turn  a  particular  estate  to  support  the  succeeding  remainders. 
There  can  be  no  remainder  without  a  particular  estate  to  support  it. 

Remainders  are  of  two  kinds,  vested  and  contingent.  A  vested  remainder 
is  one  that  is  ready  to  take  effect  on  the  determination  of  a  particular  estate 
at  any  time  or  in  any  manner.  A  contingent  remainder  is  one  that  is 
vested  subject  to  a  condition  precedent.  That  condition  may  be  the 
happening  of  a  certain  event,  or  it  may  depend  upon  the  existence  of  persons 
who  are  not  ascertained  or  in  being  at  the  time  of  the  grant.  The  law  favors 
the  vesting  of  estates;  and  if  a  limitation  may  be  considered  either  as  an 
executory  devise  or  a  remainder,  it  will  be  held  to  be  the  latter;  and  if  it  can 
be  construed  -either  as  a  vested  or  a  contingent  remainder,  the  law  will  consider 
it  as  vested  if  the  words  creating  it  are  capable  of  that  construction.  A 
vested  remainder  will  pass  to  heirs,  and  it  may  be  alienated  or  devised.  It 
may  be  taken  on  execution ;  in  which  case  it  passes  to  the  assignee  in  bank- 
ruptcy. A  contingent  remainder  is  uncertain;  that  is,  the  right  itself  to  the 
remainder  is  uncertain.  There  are  two  classes  of .  contingent  remainders.  One 
class  includes  all  cases  where  the  persons  that  are  to  take  are,  at  the  time  of 
the  gift,  uncertain  or  are  not  in  existence;  the  other  class  includes  cases  where 


§25.  OPERATIONS  PRELIMINARY   TO   CONSTRUCTION.  2O 

the  vesting  of  the  remainder  is  made  to  depend  on  the  happening  of  some 
collateral  event.  It  may  be  that  this  event  is  certain  to  occur,  but  it  may  be 
uncertain  whether  it  will  happen  before  the  termination  of  a  preceding  par- 
ticular estate;  or  it  may  be  doubtful  if  the  event  will  ever  happen  at  all. 
The  particular  estate  required  to  support  a  contingent  remainder  must  be  a 
freehold  interest. 

25.  Joint  Estate. — A  joint  estate  is  one  in  which  the  title  is  vested  in  two 
or  more  persons.  The  law  recognizes  four  such  joint  estates,  viz.,  a  joint 
tenancy,  a  tenancy  in  common,  a  coparcenary,  and  a  tenancy  by  entirety. 

An  estate  in  joint  tenancy  is  an  estate  held  by  two  or  more  persons  jointly, 
with  an  equal  right  in  either  to  share  in  the  enjoyment  of  the  lands  during 
their  lives.  When  one  of  the  tenants  dies  his  share  goes  to  the  survivors  until 
only  one  is  left,  who  then  takes  the  estate  to  himself  entirely.  The  land  then 
descends  to  the  heirs  of  the  sole  survivor.  There  may  be  a  joint  tenancy  in 
any  of  the  estates  in  land.  The  estate  must  possess  four  essential  elements, 
viz.  :  (i)  the  tenants  must  have  one  and  the  same  interest,  i.e.,  all  the  tenants 
must  hold  either  in  fee  or  for  life,  etc. ;  (2)  estates  must  have  accrued  by  one 
and  the  same  conveyance;  (3)  the  tenancy  must  commence  at  one  and  the 
same  time;  (4)  it  must  hold  by  one  and  the  same  undivided  possession.1 

A  joint  tenancy  is  created  only  by  purchase.  The  main  feature  of  a  joint 
tenancy  is  that  of  survivorship,  and  the  American  law  is  opposed  to  estates 
which  depend  solely  upon  this  principle.  Joint  tenancies  cannot  exist 
between  corporations,  because  there  can  be  no  survivorship.2 

An  estate  called  a  tenancy  in  common  exists  where  two  or  more  persons  hold 
together  the  possession  of  land,  each  holding  by  a  separate  title.  The  tenants 
may  hold  by  different  titles  which  may  have  vested  at  different  times,  and  the 
periods  of  holding  may  be  different.  There  is  no  right  of  survivorship;  but, 
each  tenant  may  alienate  his  share  by  will  or  deed,  or  if  not  disposed  of,  it 
will  descend  to  his  heirs  or  next  of  kin.  Each  tenant  in  common  has  a  right 
to  the  entire,  but  not  to  the  sole,  possession  of  the  estate.  His  estate  is 
separate,  and  he  cannot  bind  his  cotenant  by  any  agreement  or  conveyance. 

An  estate  in  coparcenary  is  a  joint  estate  going  to  the  heirs  of  one  who 
dies  without  making  a  will.  Each  heir  holds  his  share  as  an  entire  estate,  and 
the  shares  may  be  unequal  though  all  the  heirs  take  the  whole  estate  as  one 
heir.  When  one  heir  dies  his  estate  does  not  go  to  those  who  survive  him; 
yet  the  estate  is  not  to  be  broken  up  for  the  purpose  of  transmitting  to  the 
heirs  of  one  of  the  deceased  tenants,  but  it  remains  entire  until  turned  into  a 
tenancy  in  common  by  some  one  of  the  tenants  selling  or  transferring  his 
interest  in  the  estate.  Estates  in  coparcenary  do  not  exist  in  America  except 
in  Maryland,  and  the  heirs  of  one  who  has  not  made  a  will  or  otherwise  dis- 
posed of  his  property  take  as  tenants  in  common. 

16  Amer.  &  Eng.  Ency.  Law  891. 

2  6  Amer.  &  Eng.  Ency.  Law  892,  and  cases  cited. 


21  OWNERSHIP   OF  LANDS.     ESTATES.  §  2Q. 

An  estate  by  entirety  is  created  by  a  conveyance  to  the  husband  and  wife 
jointly.  Each  is  possessed  of  the  whole  estate,  and  not  of  a  share.  Therefore, 
on  the  death  of  either  of  the  parties  the  property  goes  to  the  survivor,  and  this 
right  of  the  survivor  to  the  whole  property  cannot  be  destroyed  by  either 
party.  There  are  no  rights  of  partition.  During  the  lives  of  the  husband 
and  wife  the  husband  has  the  control  of  the  estate.  He  may  receive  the 
rents  or  profits  and  may  mortgage  or  alienate  the  property.  But  such  a  con- 
veyance is  absolute  only  when  the  husband  survives  the  wife.  If  the  wife 
outlives  the  husband,  she  acquires  the  entire  interest  in  the  land,  and  may 
bring  an  action  to  recover  it.  If  a  conveyance  be  made  to  the  husband  and 
wife  and  a  third  person,  they  become  joint  tenants,  the  husband  and  wife 
taking  only  one-half  of  the  land,  and  the  other  person  named  the  other  half. 
Tenancies  by  entirety  do  not  exist  in  some  states,  and  they  have  been 
abolished  or  modified  by  statute  in  other  states. 

26.  Estate  in  Severalty. — This  is  an  estate  held  by  one  person  in  his  own 
right  exclusive  of  any  other  person  being  joined  with  him  in  point  of  interest. 
It  is  opposed  to  joint  ownership  where  tenants  hold  in  undivided  shares. 

27.  Estates  on  Condition — Mortgages. — An  estate  on  condition   is  one 
that  may  be  created,  enlarged,  or  defeated  upon  the  happening  or  failure  to 
happen  of  a  particular  event.     Such  an  estate  is,  strictly  speaking,  a  qualifi- 
cation of  some  other  estate  rather  than  a  distinct  estate  of  itself.     Conditions 
may  be  either  precedent  or  subsequent.     Conditions  precedent  are  such  as 
must  happen   or  be  proved  before  the  estate  can  vest  or  be  enlarged.     A 
condition  subsequent  is  one  that  defeats  an  estate  already  vested.     Conditions 
may  be  expressed  or  implied.     Further  discussion  of  the  subject  of  estates  on 
condition,  including  that  of  mortgages,  is  beyond  the  scope  of  this  work,  and 
for  fuller  information  upon  this  head  the  reader  is  referred  to  special  treatises. 

28.  Partial  Estates. — The  author  adopts  this  term  to  indicate  an  owner- 
ship that,  though  it  may  not  rise  to  the  dignity  of  an  estate  in  the  technical 
sense  of  the  word,    is  frequently   met  with  in   industrial  improvements  and 
developments,  and  should  always  be  kept  in  mind  by  those  engaged  in  such 
work.      It  applies  to  the  ownership  of  particular  interests  in  lands,  such  as  the 
minerals  and  metals  of  the  soil,  the  liquids  and  gases  which  permeate  it,  and 
the  natural  vegetable  products  which  it  yields.     These  may  be  the  subject  of  a 
special  grant  or  conveyance,  and  may  represent  the  chief  interest  of  value  in 
an   estate.      The  interest  may  also  be  merely  a  right  to  occupy  or  use  for 
certain  specific  purposes,  as  when  rights  of  way  are  held  for  railroad,  tele- 
graph,  and  pipe-line    systems.     Where  such   rights    or   interests   have   been 
granted,   they  must  be  kept  in  mind  whenever  an  estate  is  the  subject  of 
conveyance,  as  they  are  a  cloud  upon  the  title. 

29.  Incorporeal  Property. — Corporeal  property  includes  things  which  may 
always  be  seen  and  handled:   physical  objects,  such  as  land,  animals,   and 
materials.     Incorporeal  property  consists  of  certain  rights  or  privileges  con  • 


§29.  OPERATIONS  PRELIMINARY    TO    CONSTRUCTION.  22 

nected  with  or  issuing  out  of  corporeal  things,  as  rents  from  houses  and 
lands,  or  a  right  of  way  over  land,  or  a  privilege  to  hunt  or  fish  on  the  estate 
of  another,  etc.  The  existence  of  incorporeal  property  is  merely  an  idea  or 
contemplation,  though  the  effects  and  results,  as  the  benefit  and  profits,  may 
be  objects  of  our  bodily  senses.  An  incorporeal  hereditament  is  anything  the 
subject  of  property  which  is  inheritable  and  not  tangible  or  visible.  Incor- 
poreal property  in  the  United  States  comprises  (a)  rents,  (b)  commons,  (c) 
annuities,  (d)  easements,  (e)  franchises. 

Rent  is  a  certain  profit  issuing  periodically  (annually)  out  of  lands  or 
corporeal  tenements.  It  may  be  properly  classed  with  incorporeal  heredita- 
ments when  regarded  as  a  fixed,  permanent  charge  upon  the  land,  as  it  was  in 
early  English  history.  Rent  in  its  ordinary  acceptation  of  the  present  day  is 
a  sum  of  money  paid  for  the  occupation  of  land,  and  in  this  sense  is  not  an 
incorporeal  hereditament  though  it  does  come  strictly  within  the  definition. 

A  common  is  a  profit  which  a  man  has  in  the  hands  of  another,  such  as 
pasturage  for  his  stock,  the  right  to  catch  fish  or  to  cut  wood,  etc.  They 
were  usual  in  early  English  history,  but  are  rarely  met  with  in  this  country, 
except  when  acquired  by  prescription. 

An  annuity  is  a  yearly  sum  stipulated  to  be  paid  to  a  person  in  fee,  for 
life  or  for  years,  and  chargeable  on  the  person  of  the  grantor.  If  payable  to 
a  person  and  his  heirs,  it  is  a  personal  fee,  and  forfeitable  for  treasure  as  an 
hereditament,  and  for  that  reason  it  belongs  to  the  class  of  incorporeal 
hereditaments. 

An  easement  is  a  privilege  without  profit  which  one  landowner  has  in  a 
neighbor's  estate,  and  existing  in  respect  to  the  estate,  by  which  the  servient 
owner  is  obliged  to  surfer  or  not  do  something  on  his  own  land,  for  or  to  the 
advantage  of  the  dominant  owner.  *  From  its  very  nature  il  is  an  incorporeal 
hereditament.  It  is  not  tangible,  is  inheritable,  and  issues  out  of,  is  annexed 
to,  and  concerns  corporeal  things. 

A  franchise  is  a  special  privilege  conferred  by  the  government  on  indi- 
viduals and  which  does  not  belong  to  citizens  by  common  right.  In  the 
United  States  franchises  are  derived  from  the  state,  such  as  ferries,  railroad 
charters,  etc.f  Patent  rights  and  copyrights  are  also  forms  of  government 
franchises,  and  they  are  incorporeal  property. 

*See  Sees.  641-859,  infra.  fSee  Sees.  861  et  seq.t  infra. 


CHAPTER   III. 
TITLE  TO   PROPERTY.     HOW  ACQUIRED. 

31.  Acquisition  of  Real  Property. — Real  property  may  be  acquired   in 
three  ways:  (i)  by  original  occupation,  (2)  by  operation  of  law,  and  (3)  by- 
purchase. 

One  acquires  land  by  original  occupation  when  it  is  taken  by  conquest  or 
by  virtue  of  discovery,  or  when  the  prior  owner  cannot  be  determined,  as. 
where  it  is  reclaimed  or  added  to  other  lands  by  the  action  of  a  stream  or 
body  of  water,  as  by  the  waters  receding  or  by  deposits  due  to  action  of  the 
waters.  * 

Real  property  is  acquired  by  operation  of  law  when  it  passes  by  descent  to- 
the  heir.  The  estate  descends  to  the  heir  whether  he  will  have  it  or  not:  he 
cannot  refuse  it  nor  reject  it.  In  the  United  States  the  laws  of  descent  are 
statutory,  and  they  differ  in  the  different  states,  though  the  same  general 
principles  prevail. 

Land  acquired  by  purchase  includes  all  other  means  of  acquiring  property, 
except  by  original  occupation  and  by  descent.  It  means  simply  that  there  is 
some  act  of  a  person  or  party  that  takes  the  property.  It  embraces  two 
kinds  or  classes,  depending  upon  the  relation  of  the  former  owner  to  the  new 
owner,  viz.,  whether  the  property  is  taken  without  the  consent  of  the  former 
owner  or  with  his  assistance.  The  former  class  includes  title  to  property 
acquired  by  escheat,  by  forfeiture,  by  eminent  domain,  by  estoppel,  by  pre- 
scription, or  by  adverse  possession  under  statute  of  limitations.  The  latter 
class  includes  estates  created  by  livery  of  seisin,  by  special  custom,  by  public 
grant,  by  office  grant,  by  private  grant,  or  by  devise. 

32,  Title  Acquired  without  Consent  of  Former  Owner. — When  land  was 
acquired  by  escheat  it  ascended  to  the  heir  at  law.     The  heir  was  not  required 
to  take  it;  it  required  some  effort  on  his  part.     It  took  place  when  the  blood 
of  the  owner  became  extinct  and  there  was  no  one  to  whom  it  could  descend. 
In  modern  times  escheat  denotes  the  acquisition  of  an  estate  by  a  state, 
either  because  the  tenant  is  an  alien  or  because  he  has  died  intestate,  with- 
out lawful  heirs  to  take  his  estate  by  succession.     Escheat,  on  account  of 

*  See  Sees.  376-390,  infra. 

23 


§  3 2-  OPERATIONS  PRELIMINARY    TO   CONSTRUCTION.  24 

alienage,    is  largely  done  away  with  in  the   United    States,    and  the  most 
important  cause  of  escheat  at  the  present  time  is  the  want  of  heirs. 

In  early  common  law  forfeiture  was  the  result  of  the  acts  of  the  owner  or 
tenant  against  the  interest  of  his  lord.  If  a  tenant  for  life  sought  to  make  a 
feoffment  of  his  land,  his  estate  was  forfeited.  This  has  been  abolished. 
Forfeiture  now  ocfcurs  only  on  condition  broken,  where  a  lessee  denies  the  title 
of  the  lessor  by  attorning  to  a  stranger,  by  refusing  to  pay  rent,  or  by  paying 
rent  to  a  stranger. 

Eminent  domain  is  that  sovereign  power  vested  in  the  people  by  which 
they  can,  for  any  public  purpose,  take  possession  of  the  property  of  any  indi- 
vidual upon  paying  him  a  just  compensation.  The  power  to  take  private 
property  for  public  uses  belongs  to  every  independent  government.  It  is  an 
incident  to  sovereignty  and  requires  no  constitutional  recognition.  The 
power  of  eminent  domain  is  vested  in  the  several  states  of  the  United  States, 
and  the  power  cannot  be  divested  by  the  legislature.  The  Federal  Govern- 
ment has  also  the  right  to  condemn  lands  for  any  purposes  necessary  to  the 
exercise  of  the  powers  delegated  to  the  Federal  Government  by  the  states.* 

Title  inures  to  a  person  by  estoppel  when  he  is  a  grantee  of  a  grantor  who 
had  not  title  to  the  land  when  he  made  the  conveyance  with  covenants  of 
warranty,  but  who  has  subsequently  acquired  title  to  the  property.  The 
doctrine  also  applies  to  personal  property. 

An  estate  may  be  acquired  by  occupation,  as  when  one  dies  who  has  bought 
the  estate  for  the  life  of  another  person,  and  he  dies  before  his  grantor.  The 
person  who  first  takes  possession  of  the  estate  is  called  a  general  occupant, 
and  he  holds  the  estate  by  virtue  of  his  occupation.  To  be  an  occupant 
a  person  must  have  actual  use  and  possession  of  the  land. 

Prescription  is  where  an  estate  or  thing  is  claimed  by  a  person  because  he, 
his  ancestors,  or  predecessors  have  had  or  used  it  from  time  immemorial. 
Anciently  it  was  required  that  the  use  and  enjoyment  should  have  been 
beyond  the  memory  of  man,  but  in  the  eighteenth  century  the  English  courts 
adopted  a  fiction  which  presumed  a  grant  after  twenty  years'  possession  and 
use.f 

Adverse  possession  is  a  possession  inconsistent  with  the  rights  of  the  true 
owner  and  with  the  intention  of  excluding  the  rightful  owner.  The  posses- 
sion with  regard  to  the  owner  must  be  hostile  or  adverse,  actual,  visible, 
notorious,  exclusive,  continuous,  and  under  a  claim  or  color  of  title.  If  a 
person  hold  land  as  the  owner  thereof  adversely  for  the  full  period  of  limita- 
tions as  fixe*d  by  statute  and  without  interruption,  the  law  gives  him  a  defense 
against  all  others  who  attempt  to  disturb  him  in  his  possession,  under  the 
statute  of  limitations.  J 

*  See  Sees.  864-876,  infra.  \  See  Sees.  671-688,  infra. 

\See  Sees.  511-540,  infra. 


2$  TITLE    TO   PROPERTY.     HOW  ACQUIRED.  §  34. 

33.  Title  Acquired  with  Assistance  of  Former  Owner, — Livery  of  seisin 
was   a   common-law   ceremony   of    conveying  land,    where  the  grantor   and 
grantee  went  upon  the  land  alone  and  in  a  more  or  less  ceremonious  manner 
declared  their  intention  to  convey  and  to  receive  the  possession  and  ownership 
of  the  land.     It  was  often  accompanied  by  acts  on  the  part  of  the  grantor 
such  as  the  delivery  of  the  title-deeds  and  of  a  minute  part  of  the  estate. 
Such  a  livery  of  seisin  was  commonly  called  a  feoffment. 

In  early  English  history  land  descended  or  passed  between  persons  by 
certain  special  customs  existing  in  certain  localities  and  places,  but  they  have 
for  the  greater  part  been  destroyed  by  statute  laws  or  have  become  extinct. 
They  are  scarcely  known  in  this  country. 

The  term  public  grant  denotes  the  mode  or  act  of  creating  a  title  in  any 
person,  corporation,  or  body  politic  to  lands  which  had  previously  belonged 
to  the  government  of  the  state  or  nation  making  the  grant.  It  includes  the 
conferring  of  franchises. 

An  office  grant  is  a  conveyance  made  by  an  officer  of  the  law  to  effect 
certain  purposes  where  the  owner  is  either  unable  or  unwilling  to  execute  the 
requisite  deeds  to  pass  the  title. 

A  private  grant  is  a  grant  by  a  private  person  or  corporation.  This  is 
by  far  the  most  common  form  of  conveying  titles.  The  law  in  regard  thereto 
is  a  system  of  principles  of  the  construction  of  an  agreement  to  transfer  real 
property,  and  the  most  popular  mode  is  that  of  bargain  and  sale  by  deed.  * 

A  disposition  of  real  estate  by  last  will  and  testament  is  called  in 
technical  language  a  devise.  At  common  law  it  was  considered  not  so  much 
in  the  nature  of  a  testament  as  of  a  conveyance  by  way  of  an  appointment 
of  particular  lands  to  a  particular  person.  The  person  benefited  is  called  a 
devisee.  A  testamentary  disposition  of  personal  property  is  called  a  legacy  or 
bequest,  and  the  person  who  takes  it  is  called  a  legatee. 

Land  may  also  be  acquired  by  dedication  and  by  agreement  and  acquiescence. 
These  rights  are  acquired  by  the  consent  of  the  owner;  and  while  cases 
where  persons  have  acquired  title  by  these  methods  are  not  frequent,  yet 
they  are  recognized  methods  of  conveyancing.  They  are  more  fully  treated 
in  another  part  of  this  work.f 

34.  Who  May  Hold  and  Own  Lands. — The  capacity  of  a  person  to  take, 
hold,  or  transfer  real  estate  is  determined  and  controlled  by  the  local  law  of 
the  place  where  the  land  or  property  is  situated,  and  not  by  the  law  of  the 
person's  domicile.     If  a  person  has  power  to  convey  or  take  by  the  law  of  the 
place  where  the  land  lies,  he  will  make  or  take  a  valid  title  notwithstanding 
the  law  of  his  domicile  incapacitates  him  from  making  such  a  transfer  or 
holding  real  property. 

In    the   United    States   generally,    any   person    can   take   and    hold    real 
property,  be  the  person  man,  woman,  or  child,  a  married  woman,  an  idiot, 
*  See  Sees.  41-50,  infra.  \  See  Sees.  491-510,  701-710,  infra. 


§35-  OPERATIONS   PRELIMINARY   TO    CONSTRUCTION.  26 

an  inebriate,  a  lunatic,  or  an  alien,  the  one  requirement  being  that  the  person 
shall  be  living. 

An  alien  friend,  or  one  who  is  the  subject  of  a  country  which  is  at  peace 
with  our  country,  may  take  an  estate  in  lands  by  purchase,  devise,  or 
bequest.  At  common  law  he  could  not  take  lands  by  descent,  but  by  statute 
in  every  state,  so  far  as  the  author  has  knowledge,  an  alien  takes  land  as  a 
citizen.1  If  an  alien  dies  without  heirs,  his  estate  goes  to  the  state.1  In  some 
states  it  is  required  that  the  alien  shall  take  steps  to  become  a  citizen  of  the 
state.  '*  Civilized  countries  give  to  an  alien  enemy  protection  of  person  and 
property  until  ordered  out  of  the  country.  A  person  who  has  an  interest  in 
real  estate,  such  as  a  right  to  all  the  rents,  profits,  and  even  the  possession  of 
the  property,  held  by  another  as  a  trustee,  is  not  the  owner  or  holder  thereof, 
but  merely  a  beneficiary.  The  trustee  is  the  owner  and  holder  of  the  land, 
though  he  may  not  be  entitled  to  the  benefits  thereof. 

A  person  may  not  hold  property  by  or  through  agents  or  representatives. 
When  under  guardianship  he  may  not  convey  what  he  does  hold. 

35.  Partnership's  Interest  in  Realty. — A  copartnership  firm,  independent 
of  the  members  thereof,  is  not  a  legal  person,  either  natural  or  artificial,  and 
cannot  therefore  take  or  hold  real  property.  A  conveyance  in  the  firm  name 
is  therefore  insufficient  to  convey  the  legal  title;  but  it  has  been  held  valid  as 
a  contract  to  convey  and  to  vest  such  an  equitable  title  in  the  partnership  as 
will  defeat  an  after-acquired  title.  A  conveyance  to  Jarrett,  Moon  &  Company 
was  held  to  vest  title  in  the  member  or  m'embers  of  the  firm  in  trust  for  the 
partnership,  and  that  parol  evidence  was  admissible  to  explain  the  uncertainty 
arising  from  the  omission  of  the  Christian  names  of  the  members.  Convey- 
ances of  real  property  for  firm  purposes  are  usually  made  to  the  members  of 
the  firm  as  tenants  in  common. 

The  laws  of  Louisiana  prohibit  a  commercial  partnership  from  owning 
immovable  property;  therefore  a  firm  is  incapable  of  acquiring  title  to  real 
property.3  In  the  United  States  the  right  of  survivorship  in  joint  tenancy  has 
generally  been  destroyed  by  statute,  and  therefore  the  legal  title  to  the  interest 
of  a  partner  in  the  lands  held  by  himself  and  his  associates  for  the  purpose  of  a 
partnership  descends,  upon  his  death,  to  his  heirs  at  law,  subject  to  the  claims 
of  his  partners  and  the  creditors  of  his  firm.  The  share  remaining  after  the 
discharge  of  all  demands  against  the  firm  and  the  complete  adjustment  of  its 
affairs  goes  to  his  heirs,  subject  to  the  partner's  widow's  dower,  and  not  to  his 
executor  or  administrator.4 

In  England  and  Canada  partnership  real  estate  is  considered  as  personal 
estate  for  all  purposes,  and  after  the  settlement  of  the  firm  affairs  it  is  not 

1 1  Amer.  &  Eng.  Ency.  Law  458.  3  McKee  v.  Griffin,  23  La.  Ann.  417. 

2  See   the  Laws  of    New  York,   Texas,  4Lindley's  Law  Partnership  (Bl'kstone 

So.    Carolina.     And  see  I  Amer.  &  Eng.  Ed.  1888)341. 
Ency.  Law  458. 


2?  TITLE    TO   PROPERTY.     HOW  ACQUIRED.  §  36. 

subject  to  dower,  and  is  distributable  as  personal  property.  In  the  United 
States  the  rule  is  almost  universal  to  regard  it  as  personal  property  as  far  only 
as  may  be  necessary  for  the  payment  of  debts  and  the  adjustment  of  firm 
accounts,  the  balance  retaining  all  the  incidents  of  real  property.  When  real 
estate  is  purchased  by  partners  with  firm  funds  for  partnership  use,  the  legaJ 
title  is  held  by  the  members  of  the  firm,  usually  as  tenants-in-common, 
subject  in  equity  to  be  used  in  settling  the  liabilities  of  the  firm.  When  the 
debts  of  the  firm  are  paid,  the  incidents  and  qualities  of  real  estate  revive  and 
the  real  estate  becomes  subject  to  dower  and  homestead  rights.  The  wife  of 
a  partner  of  the  firm  should  therefore  join  in  the  conveyance  of  land  as  a 
matter  of  precaution,  if  it  be  the  intention  to  convey  a  clear  title.  In  some 
jurisdictions  the  partnership  property  is  held  to  be  personalty  until  the  part- 
nership is  wound  up  either  by  decree,  judgment,  or  agreement,  when  it  is 
determined  to  be  no  longer  partnership  stock  nor  required  for  firm  purposes.1 

Real  property  purchased  with  firm  money  inures  to  the  benefit  of  the  firm, 
and  is  part  of  its  assets  though  the  legal  title  is  held  by  one  or  more  partners 
of  the  firm.  Such  property  is  subject  to  an  implied  trust  in  favor  of  the  firm, 
and  is  liable  for  debts  to  creditors.  The  manner  in  which  property  is  treated 
on  the  books  of  the  firm  is  usually  cogent  evidence  as  to  its  partnership 
character.  If  the  value  of  land  held  by  one  partner  be  credited  to  him,  or 
one-half  be  charged  to  the  other  partner,  or  the  deed  be  made  to  the  members 
of  the  firm,  describing  them  as  partners,  or  the  taxes  have  been  paid  by  the 
firm  with  firm  funds,  such  facts  may  be  held  sufficient  to  raise  an  inference 
that  the  land  is  firm  property.2 

36,  Interest  of  Corporation  in  Realty, — A  corporation  is  a  mere  creature 
of  the  law  (legislature),  and  it  can  hold  and  convey  property  only  when  the 
power  has  been  conferred  by  statute  and  for  the  purposes  for  which  the  cor- 
poration was  created.  In  many  states  the  power  is  regulated  by  general 
statutes,  and  in  others  by  the  special  charters  granted.  The  power  of  a 
domestic  corporation  to  acquire,  hold,  and  dispose  of  real  estate  is  implied 
from  the  purposes  for  which  the  corporation  was  created,  unless  such  power 
is  restricted  by  its  charter.  A  corporation  may  be  a  tenant-in-common  with 
a  natural  person,  but  it  has  been  held  that  it  cannot  take  an  estate  in  joint 
tenancy  if  survivorship  be  an  incident  thereto.  The  right  of  religious  and 
charitable  corporations  or  associations  to  hold  real  estate  in  any  territory  of 
the  United  States  is  limited  by  statute  to  $5O,ooo.3  In  Pennsylvania  also  the 
power  of  corporations  to  hold  real  estate  is  limited,  in  that  they  prohibit  the 
dedication  of  property  to  superstitious  uses  and  to  corporations  without 
statutory  licenses.4  A  general  right  to  own  and  dispose  of  land  includes  a 
power  to  mortgage  the  property.  In  some  states  the  power  to  mortgage  is 
restricted;  it  may  be  by  charter,  by  general  statute,  or  by  a  duty  to  the 

1i7  Amer.  &  Eng.  Ency,  Law  950.  3  United  States  Rev.  Stat.  1880. 

2  17  Amer.  &  Eng.  Ency.  Law  945-948.  44  Amer.  &  Eng.  Ency.  Law  2^3. 


§  36.  OPERATIONS  PRELIMINARY    TO    CONSTRUCTION.  28 

public,  the  fulfillment  of  which  it  could  not  perform  if  it  made  the  mortgage. 
In  New  York  State  manufacturing  corporations  must  have  the  written  consent 
of  at  least  two-thirds  of  the  corporate  stock,  which  consent  must  be  recorded 
in  the  county  where  the  land  is  situated. 

The  power  of  corporations  to  take  property  by  devise  is  regulated  by  the 
statutes  of  the  several  states,  and  no  general  rule  can  be  given.  If  a  corpora- 
tion be  incapable  of  taking  real  estate  by  devise  under  the  laws  of  its  domicile, 
it  cannot  take  such  property  in  another  state.  The  want  of  power  of  a  cor- 
poration to  take  by  devise  must  be  distinguished  from  a  lack  of  capacity  of  a 
testator  to  devise  to  a  corporation.  If  a  corporation  be  competent  under  the 
laws  of  the  state  which  created  it  to  take  by  devise,  it  may  take  a  devise  from 
a  citizen  of  another  state  though  the  state  incorporating  the  company  has  a 
statute  prohibiting  all  devises  of  lands  to  corporations.  In  some  states  there 
are  statutes  which  deny  or  limit  the  power  of  foreign  corporations  to  acquire 
real  estate,  and  under  such  statutes  a  foreign  corporation  cannot  take  title. 
A  conveyance  to  a  foreign  corporation,  however,  is  usually  held  not  void,  but 
voidable,  only  when  attacked  by  the  state  itself.  If  there  be  no  local  law 
established  by  statute  or  by  decisions  which  forbids  a  foreign  corporation  from 
acquiring  or  holding  real  estate  in  the  state,  and  the  company  is  not  forbidden 
by  the  law  of  its  existence,  it  may  exercise  in  any  state  the  general  powers 
conferred  by  its  own  charter. 


CHAPTER  IV. 
CONVEYANCES  OF   LAND.     ESSENTIAL   ELEMENTS   OF   DEEDS. 

41.  Necessary  Elements  of  a  Deed, — A  deed  to  convey  an  interest  in 
land  must  have  the  following  elements:    (i)  there  must  be  two  parties,   a 
grantor  and  a  grantee;   (2)  there  must  be  a  consideration;   (3)  there  must  be 
a  subject-matter  capable  of  being  conveyed;  (4)  the  deed  must  be  executed  in 
writing,  signed,  sealed,  attested,  acknowledged,  and  delivered. 

42.  Proper   Parties — The   Grantor. — The   grantbr  must    own  the  same 
interest  as  is  conveyed  by  the  deed,  and  have  the  capacity  to  convey  it.     All 
persons  owning  the  subject-matter  of   the  conveyance  have   the  power  to 
convey  such  interest,  except  those  under  a  legal  disability,  such  as  infants, 
married  women,  and  those  of  unsound  mind. 

The  deed  of  an  infant  is  held  to  be  voidable  at  the  election  of  the  infant, 
and  not  absolutely  void. l  The  infant  may,  at  his  option,  either  repudiate  the 
deed  or  ratify  it  after  attaining  legal  age.  The  deed  of  a  person  of  unsound 
mind  is  held  to  be  void  if  the  state  of  his  mind  is  such  that  he  cannot  com- 
prehend the  character  of  the  transaction.  Any  impairment  of  the  mental 
faculties  short  of  complete  disability  to  understand  the  character  and  nature 
of  the  transaction,  is  held  to  make  the  deed  voidable  and  not  absolutely 
void.2  The  deed  of  an  habitual  drunkard  is  not  invalid  unless  his  mind  is  so 
impaired  by  the  use  of  liquor  that  he  cannot  understand  the  nature  of  the 
act.3 

At  early  common  law  the  deed  of  a  married  woman  was  absolutely  invalid, 
as  a  married  woman  had  no  power  to  grant  by  deed.  This,  however,  has 
been  generally  changed  by  statutes  in  nearly  all  the  states,  so  that  now  a 
married  woman  has  full  power  to  make  a  valid  deed.  In  some  states  the 
deeds  of  married  women  must  be  executed  in  a  peculiar  manner,  and  unless 
the  statute  is  strictly  complied  with  the  deed  is  void. 

The  Granlee. — All  persons,  including  corporations  and  those  under  a 
legal  disability,  may  take  as  grantee  by  deed.  In  most  of  the  states  there 

1  Irvine  v.  Irvine,  9  Wall.  (U.  S.)626;  Burgess  v.  Pollock,  53  Iowa  273. 
Hovey  v.  Hobson,  53  Me.  451;  Howe  v.  3  Gardner  v.  Gardner,  22  Wend.  (N.  Y.) 
Howe,  99  Mass.  98.  526;  Eaton  v.  Perry,  29  Mo.  96;  Donel- 

2  Dennett   v.    Dennett,    44    N.    H.   538;  son  v.  Posey,  13  Ala.  752. 
Doe  v.   Prettyman,  I   Houst.   (Del.)  339; 

29 


§43-  OPERATIONS  PRELIMINARY    TO    CONSTRUCTION.  30 

are  statutes  limiting  the  amount  of  land  a  corporation  may  hold.  At  early 
common  law  aliens  could  not  take  by  deed,  but  this  has  been  changed  in  all 
but  a  few  states,  so  that  now  an  alien  may  be  the  grantee  of  a  deed. 

Parties  Named  in  the  Deed. — The  parties  named  in  the  deed  must  be  so 
described  as  to  be  easily  identified.  The  usual  method  is  to  give  the  names 
of  the  grantor  and  grantee  in  full.* 

In  some  states  a  conveyance  in  fee  simple  must  be  made  to  the  grantee, 
"his  heirs  and  assigns  forever."  If  these  words  are  not  used  the  deed  is 
invalid.  In  other  states  this  has  been  changed  by  statute. 

In  a  deed  to  a  corporation  the  word  "  successors  "  must  be  used  in  con- 
nection with  the  name  of  the  corporation. 

To  make  a  clear  title  it  is  important  that  the  wife  or  husband  of  the 
grantor  execute  the  conveyance  as  grantor  to  avoid  dower  and  curtesy 
interests,  t 

43.  Subject-matter,  or  Thing  to  be  Conveyed, — The  grantor  must  have 
some  interest  in  the  land  that  may  be  conveyed.     The  conveyance  of  any 
freehold  interest  in  land  requires  an  instrument  under  seal,  that  is,  a  deed. 
All  incorporeal  interests,  such  as  easements,  rights  of  way,  rights  of  common, 
water  rights,  mineral  deposits,  etc. ,  also  must  be  conveyed  by  deed. 

The  interest  conveyed  must  be  so  sufficiently  described  as  to  be  easily 
identified. 

44.  The  Consideration, — The  consideration  need  not  actually  pass  to  the 
grantor  if  the  receipt  of  the  consideration  is  acknowledged  in  the  deed,  but  it 
must  either  be  acknowledged  in  the  deed,   or  it  must  be  proved  by  other 
evidence,  that  it  actually  passed  to  the  grantor.      Parol  evidence  is  inadmissi- 
ble to  contradict  the  acknowledgment  of  the  consideration  to  invalidate  the 
deed  between  the  grantor  and  grantee,  but  the  acknowledgment  in  the  deed 
is  only  prima  facie  evidence  of  the  amount  and  kind  of  the  consideration.      In 
an  action  to  recover  the  consideration,  parol  evidence  is  admissible  to  show 
that  a  different  amount  and  kind  of  consideration  had  been  agreed  upon.1 

45.  Execution. — A  deed  may  be  executed  by  the  grantor  himself  or  by  an 
agent  duly  authorized  for  that  purpose.      The  agent,  however,  must  have  a 
power  of   attorney  under  seal.2     In  some  of  the  states    it  is  a  settled   rule 
that  a  woman  cannot  give  a  valid  power  of  attorney  authorizing  the  convey- 
ance of  an  interest  in  land.3     In  other  states,  however,  a  married  woman  may 
give   a   valid   power   of   attorney.4     It   is   generally   held    that   the   power  of 

1  Pierce  v.  Brew,  43  Vt.   295;  Miller  v.       day   v.   Daily,    19  Wall.   609;  Sumner  v. 
Goodwin,  8  Gray  (Mass.)  542;  Murdock       Conant,  10  Vt.  9;  Earle  v.  Earle,  i  Spen. 
v.  Gilchrist,  52  N.  Y.  246;  Irvine  v.  Me-       347. 

Keen,  23  Cal.  475.  4  R^arty  v.  Mitchell,  7  Gray  243;  Grid- 

2  Han  ford  v.  McNair,  9  Wend.  (N.  Y.)  ley  v.    Wynant,  23  How.  503;  Weisbrod 
54;  Stetson  v.  Patton,  2  Me.  358.  z/.  Chicago,  etc.,  R.  Co.,  18  Wis.  41. 

3  Allen  v.   Hooper,  50  Me.  373;  Holla- 

*  See  Sees.  31-36,  supra.  \  See  Sec.  17,  supra. 


31  CONVEYANCES   OF  LAND.  §45- 

attorney  of  an  unmarried  woman  to  grant  by  deed  is  revoked  by  a  subsequent 
marriage. l 

A  deed  must  be  in  writing  to  satisfy  the  statute  of  frauds,  which  requires 
all  grants  of  all  interest  in -land  to  be  in  writing.  It  must  also  be  in  writing 
in  order  that  it  may  be  proved,  as  parol  proof  is  not  admissible  to  establish  a 
grant  of  an  interest  in  land.  Nearly  all  the  states  have  registration  laws  for 
the  recording  of  deeds.  In  order  that  a  deed  may  be  recorded  it  is  necessary 
that  the  deed  be  in  writing. 

The  generally  accepted  rule  is  that  a  deed  must  be  written  on  either  paper 
or  parchment,  as  these  materials  are  considered  more  durable  than  others, 
and  alterations  and  erasures  cannot  be  so  easily  made  by  those  intending  to 
commit  a  fraud. 

Signing. — In  most  if  not  all  of  the  states  the  signature  of  the  grantor  is 
necessary  to  the  validity  of  the  deed.  The  statute  of  frauds  requires  every 
instrument  of  conveyance  coming  within  its  operation  to  be  signed.  If  the 
statute  requires  the  instrument  to  be  subscribed,  it  must  be  signed  at  the 
end.  Otherwise  the  signature  may  appear  anywhere  in  the  instrument. 

The  effect  of  a  deed  cannot  be  destroyed  by  the  grantor's  erasure  of  his 
signature  after  the  grantee's  death.  The  deed  takes  effect  immediately  upon 
delivery  to  the  grantee.2 

Sealing. — In  all  but  a  few  of  the  states  a  seal  is  necessary  to  the  validity 
of  a  deed.  In  Louisiana,  Kentucky,  Iowa,  Alabama,  Kansas,  and  Texas 
seals  have  been  abolished  by  statute. 

At  common  law  the  seal  had  to  be  an  impression  on  wax  or  some  other 
tenacious  substance.  In  some  states  this  is  still  required,  but  generally  a 
wafer  seal  is  used.  In  a  few  states  placing  the  letters  "  L.S. "  in  a  scroll  is 
sufficient. 

The  seal  of  a  corporation  should  be  attached  by  the  officer  having  charge 
of  the  seal. 

Attestation. — Generally  in  the  United  States  a  deed  must  be  executed  in 
the  presence  of  two  or  more  witnesses.3  The  grantor  may  subsequently 
acknowledge  the  execution  of  the  deed  before  two  or  more  witnesses,  when 
they  may  unite  their  names  in  attestation  of  the  execution. 

Acknowledgment. — As  a  general  rule  it  is  not  necessary  to  the  validity  of  a 
deed  that  it  have  a  certificate  of  acknowledgment  attached  to  it.4  But  in 
most  of  the  states,  in  order  that  the  deed  may  be  recorded,  it  is  necessary  that 
the  deed  be  acknowledged  before  an  officer  duly  authorized  for  that  purpose, 


13Washb.   Real  Prop.   259;  Judson   v.  Pease,   5    Ohio   119;  Chandler   -v.    Kent 

Sierra,  22  Tex.  365.  8    Minn.    525;    Day    v.     Adams,    42   Vt. 

'2  Turner  v.  Warren  (Pa.  Sup.),  28  Atl.  520. 
Rep.  781.  4Gibbs  v.  Senft,   12  Cush.  393;  Blane 

8  Clark  v.  Graham,  6  Wheat.  577;  Mer-  v-    Stewart,    2    Iowa     383;    Stevens     y. 

win   v.    Camp,   3  Conn.   35;  Patterson  v.  Hampton,  46  Mo.  408. 


§  46.  OPERATIONS  PRELIMINARY   TO   CONSTRUCTION.  $2 

and  the  deed  must  contain  a  certificate  to  that  effect. 1  The  officer  who  takes 
the  acknowledgment  must  not  be  interested  in^the  conveyance. 

It  has  been  held  that  the  grantor  must  be  known  personally  to  the  officer 
taking  the  acknowledgment  of  the  deed,  and  that  a  simple  introduction  of  the 
grantor  to  such  officer  taking  the  acknowledgment  is  not  sufficient. 

In  some  states  it  is  required  by  statute  that  a  married  woman  acknowledg- 
ing a  deed  must  be  examined  by  the  officer  taking  the  acknowledgment,  apart 
from  her  husband,  as  to  whether  she  knows  the  contents  of  the  deed,  whether 
it  is  "her  voluntary  act  and  without  any  duress.  The  statute  must  be 
followed  exactly. 

Delivery  and  Acceptance. — In  order  that  a  deed  maybe  valid  it  must  be 
delivered  and  accepted.  The  delivery  must  be  unconditional,  except  in  the 
case  of  an  escrow.  The  grantor  cannot  retain  any  control  whatever  over  the 
deed.  When  the  delivery  is  made,  the  title  passes  from  the  grantor  to  the 
grantee.  The  deed  must  be  complete  before  delivery,  and  the  delivery  must 
be  made  during  the  lifetime  of  the  grantor.  The  deed  must  be  accepted  by 
the  grantee  in  order  that  the  title  may  pass  to  the  grantee. 

An  escrow  is  a  deed  delivered  to  a  third  person  to  be  delivered  to  the 
grantee  on  the  happening  of  some  event  or  condition.  The  grantor  must 
give  up  all  control  over  the  deed,  or,  in  other  words,  there  must  be  a  complete 
delivery  to  the  third  person.  Unless  the  event  takes  place  or  the  condition 
happens,  the  deed  is  void.  The  title  does  not  pass  to  the  grantee  until  the 
second  delivery  by  the  third  person  to  the  grantee  on  the  happening  of  the 
condition. 

46.  Operative  Words  of  Conveyance. — It  is  necessary  that  an  effective 
deed  of  conveyance  contain  what  are  termed  operative  words  of  conveyance, 
i.e.,  words  which  indicate  the  intention  of  the  grantor  to  transfer  his  estate 
or  interest  in  the  land  in  whole  or  in  part.  The  deed  generally  used  in  the 
United  States  contains  the  words  "  give,  grant,  bargain,  arid  sell."  It  is  not 
absolutely  necessary  that  these  technical  operative  words  be  used,  but  it  is 
advisable  to  do  so  in  order  to  remove  any  doubt  as  to  the  validity  of  the 
conveyance.  Any  words  will  be  sufficient  to  convey  the  title  in  fee  if  they 
clearly  manifest  the  intention  of  the  grantor  to  convey  the  estate.2  In  like 
manner  it  would  not  be  fatal  to  the  deed  if  the  operative  words  are  in  the  past 
instead  of  the  present  tense;  for  example,  "has  given  and  granted"  for 
"  do  give  and  grant  ";  but  it  is  the  prevailing  custom  in  most  of  the  United 
States  to  use  both  tenses,  viz. ,  ' '  have  given  and  granted,  and  do  hereby  give 
and  grant."  The  past  tense,  however,  is  considered  merely  as  surplusage.3 

J3Washb.  Real  Prop.  314;  Clark  v.  v.  Livingston,  8  Barb.  463;  Ivory  zv 

Troy,  20  Cal.  219;  White  v.  Denman,  i  Burns,  56  Pa.  St.  300;  McKinney  v» 

Ohio  St.  no;  Chamberlin  v.  Spargus,  22  Settles,  31  Mo.  541;  Folk  v.  Varn,  9  Rich, 

Hun  437.  Eq.  303. 

2  Harden  v.  Chase,  32  Me.  229;  Lynch  5  Pierson  v.  Armstrong,  i  Iowa  292. 


33 


CONVEYANCES   OF  LAND. 


§48. 


47.  Alterations. — An  alteration  or  erasure  made  after  the  delivery  of  the 
deed  makes  the  deed  invalid.     Some  authorities  hold  that  it  is  a  presump- 
tion of  law  that  the  alteration  was  made  after  delivery.1     Other  authorities 
hold  that  there  is  no  presumption  of  law  in  respect  to  this  matter,  and  that 
the  burden  of  proof  to  show  when  the  alteration  was  made  is  on  the  person 
relying  on  the  deed.2 

The  safer  plan  is  to  note  the  alteration  or  erasure  on  the  deed  to  show 
that  it  was  made  before  delivery,  and  have  the  notary  initial  the  correction  in 
the  margin  at  the  place  where  the  correction  was  made. 

48.  Fraud   and   Duress. — The  deed  must  be  the  voluntary  act  of  the 
grantor.     If,  therefore,  he  has  been  induced  by  fraud  or  compelled  by  threats 
to  make  the  deed,  he  may  avoid  it  by  restoring  the  consideration  within  a 
reasonable  time.     The  courts  differ  as  to  the  amount  of  duress  necessary  to 
enable  the  grantor  to  avoid  the  deed.3     The  rule  laid  down  by  the  Supreme 
Court  of  the  United  States  is  as  follows:  ','  Unlawful  duress  is  a  goad  defense 
if  it  includes  such  a  degree  of  restraint  or  danger,  either  actually  inflicted  or 
threatened  and  impending,  as  is  sufficient  in  severity  or  apprehension  to  over- 
come the  mind  and  will  of  a  person  of  ordinary  firmness. "  4 

Delay  in  avoiding  the  deed  may  affect  the  rights  of  the  grantor  because  of 
the  possible  intervening  rights  of  third  parties.5 


1  United  States  v.  Linn,  I  How.  (U.  S.) 
104;  Hill  v.  Barnes,  II  N.   H.  395;  Gal- 
land  v.    Jackman,    26   Cal.  85;  Paine  v. 
Edsell,  19  Pa.  St.  180;  White  z/.  Hass,  32 
Ala.  432. 

2  Ely  v.   Ely,  6  Gray  (Mass.)  439;  Bea- 
man  v.  Russell,  20  Vt.    205;  Jackson  v. 
Osborn,  2  Wend.  (N.  Y.)  555;  Comstock 
z/.  Smith,  26  Mich.  306. 


3  Evans  v.  Gale,  18  N.   H.  401;  Baker 
v.  Morton,  12  Wall.  (U.  S.)  150;  Watkins 
v.  Baird,  6  Mass.   506;  Miller  v.   Miller, 
68  Pa.  St.  486. 

4  United  States  v.   Huckabee,  16  Wall. 
(U.S.)  423- 

5Doolittle  v.  McCullogh,  7  Ohio  St. 
299;  Murphy  v.  Paynter,  I  Dill.  333* 
Lyon  vt  Waldo,  36  Mich.  345. 


PART  II. 

RIGHTS  AND  PRIVILEGES  INCIDENT  TO 
OWNERSPIIP  OF  REAL  PROPERTY.  PRO- 
TECTION OF,  AND  INTERFERENCE  WITH, 
RIGHTS  IN  FLUIDS.  THE  SUPPLY  AND 
USE  OF  WATER,  OIL,  GAS,  AND  ELECTRIC- 
ITY. RIGHTS  IN  NAVIGABLE  WATERS. 
INTERFERENCE  WITH  PROPERTY  RIGHTS 
BY  SURVEYORS.  TRESPASS. 


CHAPTER  V. 

WATER.    RIPARIAN  OWNERS.     APPROPRIATION  OF   WATER. 

51.  Riparian  Owners. — A  riparian  owner  is  one  who  owns  land  which 
touches  a  stream  of  flowing  water.  His  rights  are  incident  to  the  ownership 
of  the  banks  •  of  the  watercourse,  and  it  is  necessary  to  the  existence  of  a 
riparian  right  that  the  land  should  be  in  contact  with  the  flow  of  the  stream.1 
A  canal  company  owning  a  strip  of  land  along  the  banks  of  a  stream  and 
which  touches  the  flow  of  the  stream  is  a  riparian  owner.2  Lateral  contact 
has  been  held  as  good  as  vertical  contact  so  far  as  concerns  the  rights  of  the 
riparian  owner.3 

An  owner  of  land  in  the  neighborhood  of  a  stream  but  not  upon  the  line 
of  it  has  not  the  rights  of  a  riparian  owner  in  that  stream.4  He  cannot 
maintain  an  action  for  damages  for  the  obstruction  of  a  viaduct  unless  he 
has  sustained  some  special  damage  distinct  from  the  public  at  large.5 

1  Jones    v.  Johnston,   18  How.  (U.  S.)       Fed.  Rep.  974;  Lyon  -v.  Fishmongers  Co., 
150;  Johnston  v.  Jones,  i  Black  (U.  S.)       L.  R.  i  App.  Cas.  682. 

209;  Lake  Sup.  Ld.  Co.  v.   Emerson,  38  4Schlag  z/.  Jones,  131  Pa.  St.  62;  Union 

Minn.  406.  Mill.  &  Min.  Co.  v.  Dangberg  (C.  C.),  81 

2  Minneapolis  W.  Co.  v.  Amer.  S.  Co  ,  Fed. Rep. 73;  Gould  v.  Stafford,  77  Cal.  66. 
53  Fed.  Rep.  970.  5  Potter  v.   Ind.,  etc.,   Ry.  Co.  (Mich.), 

3Ind.  Water  Co.  v.  Amer.   S.   Co.,  53       54  N.  W.  Rep.  956. 

34 


5$  WATER.     RIPARIAN  OWNERS.  §53- 

52.  Rights  and  Liabilities  of  Persons  Holding  under  Riparian  Owners. 

— A  riparian  owner  need  not  own  the  fee  of  the  land.  It  is  sufficient  if  he 
be  entitled  to  the  exclusive  possession  of  the  land  abutting  on  the  stream.1 
It  is  not  required  that  a  lower  riparian  owner  be  in  possession  of  his  lands 
in  order  to  maintain  trespass  against  an  upper  owner  to  recover  damages  for 
diverting  the  water  of  the  stream.  'z 

It  seems  that  a  riparian  owner  is  not  responsible  for  the  diversion  of 
waters  by  his  tenants.3  A  contractor  is  not  liable  for  acts  undertaken  for 
a  riparian  landowner  or  a  city  where  such  acts  obstructed  and  diverted  •<.< 
stream.4  A  licensee*  of  plaintiff  may  not  be  held  in  damages  for  wrongfully 
erecting  and  maintaining  dams  across  a  river,  as  it  violates  the  defendant's 
rights  under  his  license.5 

A  grantee  railroad  company  is  not  liable  for  injuries  due  to  structures 
(jetties)  erected  by  its  grantor,  not  upon  its  right  of  way,  to  protect  its  bridge, 
the  grantee  company  not  having  assumed  the  control  or  tried  to  maintain  the 
said  structures.6  A  grantee  of  an  abutting  owner  on  a  street  is  not  liable  for 
injuries  due  to  the  cover  of  a  water-box  having  become  displaced,  when  the 
box  had  been  erected  in  the  street  by  his  grantor  and  he  had,  on  taking 
possession  of  the  lot,  discontinued  the  use  of  the  box  and  constructed  another 
in  another  place.  The  grantee  of  a  creator  of  a  common  nuisance  is  liable 
in  damages  for  special  injury  only  after  request  to  abate  the  nuisance.7 

53.  Riparian  Rights  Belong  Only  to  Persons  Entitled  to  Possession. — A 
person  who  is  merely  in  possession  of  unsurveyed  government  land  has  no 
riparian  rights  to  the  use  of  the  stream  flowing  through  it.8     A  mere  squatter 
is  limited  to  his  actual  possession,  and  has  no  riparian  rights.9 

As  proprietor  of  the  land  through  which  a  stream  flows,  the  government 
has  the  same  property  and  right  in  the  stream  that  any  other  proprietor  would 
have.10  The  grant  of  a  right  of  way  along  the  banks  of  a  stream  will  not 
make  the  grantee  a  riparian  owner.11  The  laying  out  of  a  street  in  front  of 
uplands  does  not  deprive  the  owner  of  his  riparian  rights; 12  but  the  dedication 
of  a  strip  of  land  along  the  banks  of  a  watercourse  for  a  street  or  public  high- 
way has  been  held  to  confer  upon  the  public  equal  rights  with  the  owner  of 

!Hanford  v.  St.  Paul,  etc.,  R.   Co.,  43  6  Fordyce    v.   Russell  (Ark.),   27  S.  W. 

Minn.   104.     A  tenant    may  recover    for  Rep.  82. 

injury  to  his  crops  by  overflow  of  lands.  7  Staples  v.  Dickson,  88  Me.  362. 

Indiana,  etc.,  R.  Co.  v.  Patchette,  59  111.  8  Lake  v.  Tolls,  8  Nev.   285;  Covington 

App.  251.  v.  Becker,  5  Nev.  281. 

2  Hogg  v.   Connellsville  W.  Co.   (Pa.),  9  Watkins  v.  Holman,  16  Pet.  (U.  S.)  25. 

31  Atl.  Rep.  1010.  10  Union  M.  &  M.  Co.  v.  Ferris,  2  Saw. 

,3  Gould  v.  Stafford  (Cal.),  35  Pac.  Rep.  176. 

429.  11  Indianapolis  W.  Co.  v.  Amer.  S.  Co., 

4  De  Baker  v.  So.  Cal.  Ry.  Co.  (Cal.),  53   Fed.   Rep.   974;  Hagan    v.    Campbell 
39  Pac.  Rep.  610.  (Ala.),  8  Port.  9;  Potter  v.  Ind.,  etc.,  R. 

5  Peay  v.  Salt  Lake  City  (Utah),  40  Pac.  Co.,  95  Mich.  389. 

Rep.  206.  12  Prior  v.  Comstock,  17  R.  I.  i. 

*  See  Sees.  661-671,  infra. 


§54-  OPERATIONS  PRELIMINARY    TO    CONSTRUCTION.  36 

the  soil.1  A  street  bordering  on  a  stream  was  held  to  be  intended  for  use  of 
the  public  to  get  to  the  river,  in  contradiction  to  the  exclusive  use  of  one 
claiming  riparian  rights  as  the  owner  of  the  soil.2 

54.  Rights  of  the  Public  and  of  Riparian  Owners  to  Waters. — The  state 
has  no  power  to  arbitrarily  destroy  the  rights  of  a  riparian  owner  without  his 
consent,  and  without  compensation  and  due  process  of  law,  for  the  sole 
purpose  of  benefiting  some  other  riparian  owner,  or  for  any  other  merely 
private  purpose;  and  a  law  relinquishing  to  a  person  all  its  right,  title,  and 
interest  in  and  to  all  lands  lying  within  the  limits  of  a  lake,  and  authorizing 
the  drainage  of  such  lake  without  the  consent  of  riparian  owners,  is  void,3 
A  mill-owner's  right  to  the  waters  of  a  stream  cannot  be  defeated  on  the 
ground  that  the  head  waters  should  be  diverted  for  the  consequent  improve- 
ment of  public  highways  and  marsh  lands.4 

Under  the  colonial  ordinance  of  1641-47,  all  great  ponds  (ponds  contain- 
ing more  than  10  acres)  in  Maine  are  owned  by  the  state;  and  the  legislature 
may  permit  towns  and  cities  to  take  water  therefrom  for  the  domestic  use  of 
their  inhabitants  without  paying  damages  to  those  who  have  been  using  the 
water  for  mill  power.5  The  state  of  Maine  has  the  constitutional  power  to 
grant  superior  or  even  exclusive  privileges  in  the  use  of  its  public  rivers 
either  to  persons  or  corporations.6 

The  fact  that  a  water  company  was  chartered  for  the  purpose  of  supplying 
a  certain  city  and  its  inhabitants  with  water  and  has  entered  into  a  contract 
to  fulfill  that  purpose  does  not  give  the  water  company  any  additional  rights 
to  use  or  appropriate  the  waters  of  a  stream.7  The  fact  that  a  dam  is 
authorized  by  the  legislature  does  not  relieve  a  city  from  liability  for  the 
permanent  submersion  of  land  by  the  construction  of  the  dam  for  the  pur- 
poses of  a  water-supply.8  The  acts  of  incorporation  of  water  companies,  or 
the  general  laws  governing  them,  usually  give  powers  of  condemnation,  by 
which  they  may  take  water  rights  and  privileges  by  making  just  compensa- 
tion.9 

A  city  that  has  diverted  the  waters  of  a  stream  for  public  use  without 
process  of  law,  and  not  long  enough  to  acquire  a  prescriptive  right,  may  be 
restrained  and  compelled  to  pay  damages  by  a  recent  purchaser  of  land,  further 
down  the  stream,  though  he  bought  with  knowledge  of  the  diversion.10 

1  28  Amer.  &  Eng.  Ency.   Law  948,  and  6  Mullen  v.  Penobscot  Log-Driving  Co. 
cases  cited.  (Me.),  38  Atl.  Rep.  557  [1897]. 

2  Barney  v.   Keokuk,  94  U.  S.  324.   But  7  Tampa  W.  Co.   v.  Cline  (Fla.),  20  So. 
see  Potomac  Steamboat  Co.  v.  Upper  P.  Rep.   780;  Saunders  v.  Bluefield  W.  &  I. 
S.  Co.,  109  U.  S.  672,  where  the  fee  of  the  Co.  (C.  C.),  58  Fed.  Rep.  133. 

street  was  in  the  United  States.  8  Baltimore  v.  Merryman,  39  Atl.  Rep. 

3Priewe   v.    Wis.    St.    L.    &    Imp.   Co.  98;   Carl  v.    W.  Aberdeen    Co.    (Wash.), 

(Wis.),  67  N.  W.  Rep.  918.  43  Pac.  Rep.  890. 

4  Stock  v.  Jefferson  Tp.   (Mich.),   72  N.  9  Laws   of   New  York    1873,   chap.  737; 
W.  Rep.  132  [1897].  1876,  chap.  415. 

5  City  of  Auburn  v.  Union  Water-Power  10  Duesler  v.  Johnstown,  48  N.  Y.  Supp. 
Co.  (Me.),  38  Atl.  Rep.  561  [1897].  683. 


37  WATER.     RIPARIAN  OWNERS.  §  56. 

A  water  company  cannot  resist  a  riparian  owner's  application  for  an 
injunction  compelling  it  to  restore  the  natural  flow  of  a  stream,  by  an  answer 
that  he  has  enough  water  left  for  all  his  uses  and  purposes,  or  would  have 
enough  if  he  properly  controlled  or  secured  it. l 

55.  Riparian   Rights  Incident  to  Ownership  of  Land. — The  rights  of 
riparian  owners  in  streams  are  rights  which  are  incident  and  belong  to  the 
land  through  which  the  water  flows.     They  do  not  exist  by  reason  of  a  pre- . 
sumed  grant  or  long  acquiescence.     They  exist  from  the  moment  that  the 
land  is  acquired,    whether  they  have  been   exercised  before  or  not.     They 
cannot  therefore  be  lost  by  long  user,  though  they  may  be  lost  by  the  adverse 
enjoyment  by  another,  which  destroys  the  right.2     The  right  to  the  natural 
flow  of  water  of  a  stream  is  a  right  guaranteed  by  law.     A  riparian  owner 
cannot  be  divested  of  this  right  except  by  voluntary  relinquishment  on  his 
part,  or  by  condemnation  for  public  purposes.3 

A  purchaser  of  riparian  land  takes  his  full  rights  in  the  waters  of  a  stream 
without  special  words  conveying  the  same.  If  the  grantor  or  vendor  will 
reserve  any  rights  to  himself,  he  must  do  so  in  express  words  in  the  convey- 
ance.4 The  right  to  have  a  stream-flow  unobstructed  is  a  corporeal  right,  it 
is  a  natural  right,  an  incident  of  the  property  in  land.5  Each  owner  may 
insist  that  a  stream  shall  flow  to  his  land  in  the  usual  quantity,  at  its  natural 
place  and  height,  and  that  it  shall  flow  off  his  land  to  his  neighbor  below  in 
its  accustomed  place  and  at  its  usual  level.4  A  lease  of  the  surplus  water  of 
a  canal,  not  required  for  the  purposes  of  navigation,  does  not  convey  any 
right  to  the  corpus  of  the  water,  and  when  the  canal  is  abandoned  the  water 
may  be  altogether  withdrawn.6 

56.  Rights  in  Streams  are  Common  and  Not  Divisible, — The  rights  of  a 
riparian  owner  to  the  use  of  the  waters  of  a  stream  are  not  exclusive  nor 
absolute,   but  are  subject  to  the  rights  of  other  riparian  owners  along  the 
stream,  except  when  expressly  qualified  by  grant  or  prescription,  or  by  the 
right  of  the  prior  appropriation,  such  as  is  recognized  in  some  of  the  western 
states,   where  irrigation  is  practiced.      There  is  a  popular  sentiment  among 
the  people  that  water  is  public  .property  and  free  as  the  air  we  breathe,  but 
this  contention  cannot  be  supported  unless  the  stream  be  a  navigable  stream, 
in  which  the  public  have  special  rights.      The  property  of  water  in  running 
streams  is  indivisible,  and  all  the  proprietors  of  the  land  bordering  on  the 
stream  are  entitled  to  an  equality  of    rights  therein.     The  stream  must  be 

1  Gilzinger  v.  Saugerties  W.  Co.  (Sup.),       Ency.  Law  949. 

21  N.  Y.  Supp.  T2I.   Andsee  Low  v.  Schaf-  3Gilzinger  v.  Saugerties  W.  Co.  (Sup.), 

fer  (Oreg.),  33  Pac.  Rep.  678.  ButseeP'me  21  N.  Y.  Supp.   121;  Union   Mill.  &  Min. 

v.  New  York  (C.  C.),  76  Fed.  Rep.  418,  Co.  v.  Dangberg  (C.  C.  D.  Nev.),  81  Fed. 

and  New  York  R.  Co.  v.  Rothery  (N.  Y.),  Rep.  73. 

14  N.  E.  Rep.  269  [1888].  4  Gould  on  Waters,  §§  204,  208. 

2  Clinton  G.   Lt.  Co.  v.   Fuller  (Mass.),  5Scrivner  v.  Smith,  100  N.  Y.  471. 

48  N.  E.  Rep.  1024;  Duesler  v.  Johns-  6Hoagland  v.  N.  Y.,  Chicago  &  St.  L. 
town,  48  N.  Y.  Supp.  683  [1898] ;  Eddy  v.  Ry.  Co.  (Ind.),  13  N.  E.  Rep.  572  [1887]. 
Chace,  140  Mass.  471;  28  Amer.  &  Eng. 


§57'  OPERATIONS  PRELIMINARY   TO    CONSTRUCTION.  38 

used  as  an  entire  stream  in  its  natural  channel.      There  can  be  no  dividing  it 
into  parts  without  mutual  consent.1 

57.  Appropriation  of  Waters  by  Riparian  Owners — Extent  of  Use. — 
There  is  a  general  rule  that  no  riparian  owner  has  a  right  to  use  the  water  to 
the  prejudice  of  another.      He  may  make  use  of  his  right  to  a  reasonable 
extent.      He  may  use  what  is  reasonable  for  domestic  and  agricultural  pur- 
poses, and  the  reasonableness  of  the  use  is  a  question  of  fact  for  a  jury  to  be 
determined  by  the  particular  circumstances  of  each  case,  having  regard  for 
the  diminution  in  quantity,  the  retardation  or  acceleration  of  the  current, 
and  any  extraordinary  uses,2  considering  the  width  and  depth  of  the  stream, 
the  fall,  the  volume  of  water,  and  the  state  of  improvements  in  manufactures 
and  useful  arts.3 

It  is  reasonable  to  make  use  of  the  force  of  a  stream,  and  to  make  limited  and 
temporary  appropriation  of  its  waters;  but  the  rights  of  a  riparian  owner  are 
such  as  his  location  and  opportunity  afford  him,  and  are  prior  to  other  owners 
below  him  and  subsequent  to  those  above  him  on  the  stream.4  So  much  as 
will  not  materially  and  sensibly  diminish  the  quantity  may  be  diverted  for 
manufacturing  purposes,5,  and  more  water  may  be  taken  at  times  of  high 
water  and  flood.6  At  such  times  a  water  company  which  is  a  riparian  owner 
may  store  and  pump  the  surplus  or  flood  waters,  provided  such  diversion  and 
appropriation  cause  no  actual  injury  to  riparian  owners  nor  impair  the  rights 
of  another  water  company.7 

' '  Natural  flow  ' '  means  the  quantity  of  water  ordinarily  flowing  in  the 
stream  at  times  when  its  volume  is  not  increased  by  unusual  freshets  or  rains.8 

58.  Regard  Must  be  Paid  to  Use  of  Waters  by  Other  Riparian  Owners. 
— The  use  must  be  reasonable,  conformable  to  the  usages  and  wants  of  the 
community,  with  proper  regard  for  the  progress  of  improvement  in  hydraulic 
works,  not  inconsistent  with  a  like  reasonable  use  by  the  other  proprietors  of 
land  on  the  same  stream,  both  above  and  below.9     One  riparian  mill-owner 
may  not  alternately  use  his  water-power  in  connection  with  steam-power  to 
the  annoyance  and  injury  of  a  lower  mill-owner,  as  by  so  operating  it  that 
when  he  was  using  the  steam-power  he  would  allow  the  water  to  accumulate 
in  his  dam  during  working  days,  so  that  the  flow  was  cut  off  from  plaintiff's 
mill,  and  then  during  the  night-time  and  on  Sundays,  when  plaintiffs  could 

1 28    Amer.    &    Eng.    Ency.    Law    950;  (Com.    PI.),    12  Montg.    Co.    Law   Repr. 

Vandenberg    v.    Van  Bergen,   13  Johns.  46. 

(N.  Y.)  212.  6  Heilbron  ».  76  Ld.  &  Water  Co.  (Cal.), 

3  9  Amer.    &  Eng.   Ency.  Law  854;  28  30  Pac.  Rep.  802;  Lehigh  C.  &  N.  Co.  v. 

Amer.  &  Eng.  Ency.  Law  951,  cases  cited;  Scranton  G.  &.  W.  Co.  (Com.   PI.),  6  Pa. 

Gillis  v.  Chase  (N.   H.),  31  Atl.  Rep.   18;  Dist.  Rep.  291. 

Quigley    v.     Birdseye   (Mont.),   28    Pac,  7  Lehigh  C.  &  N.  Co.  v.  Scranton  G.  & 

Rep.  741.  W.  Co.  (Com.  PL),  6  Pa.  Dist.  Rep.  291. 

3  Gould  on  Waters,  §§204,  208.  8  Nemasket  Mills   v.   Taunton  (Mass.), 

*Merrifieldz'.  Worcester,  no  Mass.  219  44  N.  E.  Rep.  609. 

5Phila.   &  R.  R.  Co.  v.   Pottsville  W.  9Cary  v.   Daniels  (Mass.),  8  Met.  466; 

Co.  (Com.   PI.),  18  Pa.  Co.  Ct.  Rep.  501;  Lewis  v.  Springfield  W.  Co.  (Pa.   Sup.), 

Myers  v.    Phila.  J.  &  C.   Pass.  Ry.  Co.  35  Atl.  Rep.  186. 


39  WATER.     RIPARIAN  OWNERS.  §  60. 

not  use  the  water,  allowing  it  to  run  off.  An  injunction  may  be  obtained 
perpetually  restraining  defendant  from  retaining  the  water  except  for  the 
proper  use  of  his  mill,  or  from  discharging  it  except  for  the  purpose  of 
running  his  mill,  or  so  as  to  relieve  his  dam,  and  from  holding  back  the 
water  in  order  to  accommodate  his  steam-power.1 

It  is  not  a  question  of  what  is  a  reasonable  use  for  business  or  other  pur- 
poses, but  what  is  reasonable  with  respect  to  the  rights  of  others.  Every 
condition  which  affects  those  rights  must  be  considered,  such  as  the  character 
and  size  of  the  stream,  the  quality  of  the  water,  and  the  uses  to  which  it  can 
be  applied.2  The  appropriation  of  the  water  of  an  unnavigable  stream  by  a 
riparian  owner  in  such  quantities  as  to  unreasonably  diminish  the  supply  of 
other  riparian  owners  is  a  private  nuisance,  for  which  an  injunction  will  lie.3 

When  the  needs  of  a  riparian  proprietor  are  satisfied,  he  cannot  take  the 
excess  flow  of  the  stream.4  Therefore,  when  a  decree  in  partition  adjudged 
that  certain  parties  should  have  the  use  of  the  waters  of  a  stream  the  source 
of  which  is  on  the  land  of  another  party,  the  fact  that,  after  the  decree  was 
made,  the  volume  of  water  at  the  source  of  the  stream  increased  does  not 
entitle  the  owner  of  •  the  land  to  appropriate  the  increase,  there  being  no 
evidence  of  its  cause.5 

59.  Reasonable  Use  of  Waters — How  Determined, — To  determine  the 
reasonable  use  of  water  by  a  mill-owner,  it  has  been  held  necessary  to  con- 
sider the  nature,  necessity,  and  extent  of  the  use,  the  manner  in  which  the 
water  is  applied,  previous  usage,  the  nature  and  condition  of  the  improve- 
ments upon  the  stream,  the  volume  and  velocity  of  the  water,  his  prescriptive 
rights  and  their  nature,    the   situation   of  lower  mills  and   ponds,   and  the 
capacity    of   the    latter,    and    the    practicability   of    enlarging   them.6      The 
quantity  of  water  used  is  limited  by,  and  must  not  exceed,  what  is  reasonably 
required  for  the  operation  and  propulsion  of  works  of  such  character  and 
magnitude  as  are  adapted  and  appropriate  to  the  size  and  capacity  of  the 
stream.7    The  general  usage  of  the  country  in  similar  cases  may  be  considered 
by  the  jury  in  deciding  what  is  a  reasonable  use.8     The  question  cannot  be 
determined  by  the  requirements  of  the  defendant's  business  or  the  use  which 
was  previously  made  of  the  stream,  as  in  the  case  of  a  purchase  of  a  mill  privi- 
lege from  an  owner  of  a  lower  privilege.9 

60.  Water  for  Domestic   Purposes. — A  riparian  owner  may  appropriate 

1  Hoyt  v.  Cline  (N.  Y.  App.),  31  N.  E.          5Glassell   v.  Verdugo   (Cal.),    41  Pac. 
Rep.  623;  Lewis  v.   Springfield    W.   Co.       Rep.  403. 

(Pa.  Sup.),  35  Atl.  Rep.  187.  6  Timm  v.  Bear,  29  Wis.  254;  Dumont 

2  Hayes  v.  Waldron,  44  N.  H.  580.  And  v.    Kellogg,    29  Mich.   420;  Stamford  v. 
see  Pine   v.   New  York  (C.  C.),  76  Fed.  Felt  (Cal.),  16  Pac.  Rep.  900  [1888]. 
Rep.  418.  7  Springfield  v.  Harris  (Mass.),  4  Allen 

3Saunders  v.  Bluefield  W.  &  Imp.  Co.  496;  Thurber  v.  Martin  (Mass.),  2  Gray 

(C.  C.),  58  Fed.   Rep.   133;  Carpenter  v.  394. 

Gold  (Va.),  14  S.  E.  Rep.  329.  8  Dumont  v.  Kellogg,  29  Mich.  420. 

4  Low  v.  Schaffer  (Oreg.),  33  Pac.   Rep.  9  Gould  on  Waters,  §  208. 
678. 


'§  6 1.  OPERATIONS  PRELIMINARY   TO    CONSTRUCTION.  40 

and  consume  so  much  of  the  water  flowing  through  his  land  as  is  necessary 
to  satisfy  his  natural  wants,  even  though  it  consume  all  the  water  of  the 
stream.  General  domestic  wants  include  such  as  are  necessary  to  his  house- 
hold uses  and  for  watering  stock.  1  Natural  wants  (or  ordinary  use)  have 
been  defined  as  those  absolutely  necessary  to  be  supplied  to  maintain  a  man's 
existence;  artificial  wants,  as  those  which  conduce  to  his  comfort  and  pros- 
perity. Among  his  natural  wants  are  the  uses  of  water  to  quench  thirst, 
keep  clean,  water  stock,  as  these  wants  must  be  supplied  or  both  man  and 
beast  will  perish.  The  supply  of  artificial  wants  (or  extraordinary  use) 
properly  includes  those  that  are  not  indispensable,  such  as  water-powers, 
steam-plants,  and  irrigation  in  a  fertile  country.  Manufactories  promote  the 
prosperity  and  comforts  of  man,  but  are  not  absolutely  essential  to  his  exist- 
ence.2 The  appropriation  of  waters  required  for  domestic  purposes  has 
always  been  held  a  reasonable  use.3 

The  reasonable  use  does  not  permit  the  riparian  owner  to  dam  up  a 
.stream  and  spread  the  water  over  a  large  surface,  causing  much  of  it  to  be 
.lost  by  absorption  and  evaporation.4  The  grinding,  washing,  and  cooling  of 
rubber  have  been  held  not  purposes  for  which  the  inhabitants  had  the  right  to 
appropriate  and  use  the  waters  of  a  stream.5  It  has  been  held  that  the 
appropriation  of  water  for  watering' a  garden  is  a  domestic  use,6  but  not  when 
there  is  scarcely  sufficient  for  the  natural  wants  of  other  riparian  owners,  for 
domestic  use  and  for  stock.7 

The  right  of  a  riparian  owner  to  the  use  of  water  in  a  stream,  it  should  be 
remembered,  is  not  an  absolute  right  to  a  given  quantity,  but  a  right  to  a 
reasonable  use.  He  may  not  take  an  equivalent  amount  for  another  and  a 
different  purpose.8  A  stream  rising  on  one's  land,  it  has  been  held,  could 
not  be  diverted  from  its  natural  channel,  though  the  supply  of  water  was 
barely  sufficient  for  the  owner's  domestic  purposes.9 

61.  Appropriation  of  Waters  by  Non-riparian  Owners  or  for  Non- 
riparian  Purposes. — A  person  who  is  not  a  riparian  owner  cannot  for  any 
purposes  take  or  divert  waters  of  a  non-navigable  watercourse,  if  such  taking 
shall  injure  lower  riparian  owners  ; 10  as  for  irrigation,11  not  until  after  other 

1  Gould  on  Waters,  §  205;  28  Amer.  &  7  Mastenbrook  v.  Alger  (Mich.),  68  N. 
Eng.  Ency.  Law  953.  W.  Rep.  213. 

2  Evans   v.    Merriweather,   4    111.    495;  8Atty.-Gen'l  v.  Gt.   Eastern  R.  Co.,  23 
City  of  Auburn  v.  Union  W.  P.  Co.  (Me.),  L.   T.   344.     But  see  Marshall  v.  Hershey 
38    Atl.     Rep.    561;    Gould    on    Waters,  (Pa.),  39  Atl.  Rep.  887  [1898]. 

§  205.  9  Arnold  v.  Foot  (N.  Y.),  12  Wend.  330. 

3  City  of  Auburn  v.  Union  W.  P.   Co,  Btit  see  Evans  v,  Merriweather,  4  111.  495. 
(Me.),  38  Atl.  Rep.    561  [1897];   Philadel-  10  Hayden  v.  Long,  8  Ore.  244;  Devon- 
phia  &  R.   R.   Co.   v.   Pottsville  W.  Co.,  shires.  Eglin(Eng.),  14  Beav.  530;  Gould 
182  Pa.  St.  418.  v.  Eaton  (Cal.),  49  Pac.  Rep.  577;  Gould 

4Ferrea  v.  Knipe,  28  Cal.  344.  on  Waters,  §  224. 

5  Para  Rubber  Shoe  Co.  v.  Boston,  139  "Union  M.  &  M.  Co.  v.  Dangberg  (C. 
Mass.  155.  C.),  81  Fed.    Rep.   73;  Vernon   Ir.   Co.   v. 

6  Wilts   Canal    Co.    v.    Swindon  Water  Los  Angeles  (Cal.),  39  Pac.  Rep.  762. 
Co.,  L.  R.  9  Ch.  455. 


41  WATER.     RIPARIAN  OWNERS.  §62. 

owners  have  been  supplied  with  what  is  required  for  tneir  domestic  purposes, 
in  California,  where  special  irrigation  laws  prevail.1  It  has  been  held,  how- 
ever, that  the  taking  of  waters  from  a  river  by  a  non-riparian  owner,  and  the 
returning  of  it  to  the  river  unpolluted  and  undiminished  after  it  has  been 
used  to  cool  certain  apparatus,  was  not  a  ground  for  an  injunction  against  the 
taking  of  the  water,  or  against  the  riparian  owner  through  whose  lands  it  was 
taken.2 

If  two  neighboring  riparian  owners  divert  a  part  of  a  stream,  for  their 
mutual  use  and  benefit,  into  a  new  channel,  as  a  raceway,  they  may  be  held 
to  have  riparian  rights  in  the  raceway  as  part  of  the  stream,  same  as  in  a 
natural  stream,  and  may  therefore  prevent  an  upper  riparian  owner  from 
diverting  more  than  his  share  of  the  waters.3 

A  non-riparian  owner  has  been  held  to  have  such  a  right  to  running  water 
as  will  enable  him  to  prevent  an  upper  proprietor  from  interfering  with  such 
right  by  using  or  granting  the  water  for  purposes  which  were  not  riparian.4 

The  owner  of  a  mill  site  on  a  stream  fed  by  lakes  and  surrounding  marsh 
may  enjoin  a  township,  not  a  riparian  .owner,  from  diverting  the  head  waters 
by  cutting  a  ditch  along  the  highway,  even  though  his  resulting  loss  would 
be  small  in  comparison  with  benefits  accruing  to  the  public  and  owners  of 
lowlands.5 

62,  Appropriation  of  Waters  for  Municipal  Water-supply. — A  company 
may  not  collect  the  waters  of  a  stream  into  a  reservoir  to  supply  the  inhab- 
itants of  a  distant  town. 6  This  is  true  even  though  the  city  own's  land  on  the 
stream  and  its  inhabitants  have  from  time  immemorial  used  the  water  for 
domestic  purposes.7  It  may  take  water  and  sell  it,  if  it  be  within  its  right  to 
a  reasonable  use.8 

A  water  company  authorized  by  its  charter  to  take  certain  land  and  a 
stream  flowing  through  it  is  entitled  to  all  the  rights  of  a  riparian  owner.9 

As  against  lower  owners  a  riparian  owner  cannot  sell  the  waters  of  the 
stream,10  as  to  a  railroad  company  for  use  of  its  locomotives. n  A  water-works 

1  Smith  v.  Corbit  (Cal.),  48  Pac.  Rep.       Pa.    St.    211,    and   Broadmoor    Dairy  v. 
725.  Brookside  Co.  (Colo.),  52  Pac.   Rep.   792 

2  Kensit  v.  Grand  E.  R.  Co.  (Eng.),  27       [1897]. 

Ch.    Div.    122;  Ormorod    v.    Todmorden  7^Etna    Mills  v.   Waltham,    126   Mass. 

Mill  Co.   (Eng.),   ii  Q.  B.  Div.    155.    See  422;  Waller  v.   Manchester  (Eng.),  6  H. 

Bristol  Hydraulic  Co.   v.   Boyer,  67  Ind.  &  N.   667;  Standen  v.   New  Rochelle  W. 

236.  Co.  (Sup.),  36  N.  Y.  Supp.  92. 

3Nuttal  v.  Bracewell,  L.  R.  2  Ex.  i.  8  Gillis  v.  Chase  (N.  H.)(  31  Atl.  Rep. 

4  Heilbron    v.    Fowler    Canal    Co.,    75  18;  Lehigh  C.  &  N.  Co.  v.  Scranton  G.  & 
Cal.    426;    Williams    v.    Wadsworth,    51  W.  Co.,  6  Pa.  Dist.  Rep.  291. 

Conn.  277.  9  Wright  v.  Woodcock,  86  Me.  113. 

5  Stock  v.  Jefferson  Tp.  (Mich.),  72  N.  10  Higgins  ^.Flemington  W.  Co.,  36  N. 
W.  Rep.  132  [1897].                                                 J.   Eq.   538;  Swindon    W.    Co.    v.    Wilts, 

6Swindon  W.  Co.  v.  Wilts,  etc.,  Co.,  7  etc.,  Co.  (Eng.),  L.   R.  7  H.  L.  Cas.  697; 

H.  L.  Cas.  697;  Higgins  v.   Flemington  Heilbron  v.  Fowler  S.  Canal  Co.,  75  Cal. 

W.    Co.,    36   N.    J.    Eq.   538;  Standen  v.  426. 

New  Rochelle  W.   Co.  (Sup.),  36  N.  Y.  n  Phila.  &  R.   R.   Co.  v.   Pottsville  W. 

Supp.  92;  Smith  v.   Brooklyn  (Sup.),  46  Co.  (Com.  PL),  18  Pa.  Co.  Ct.   Rep.  501. 

N.  Y.    Supp.    141.     See  Haupts  App.,  120  But  see  182  Pa.  St.  418. 


§63.  OPERATIONS  PRELIMINARY   TO    CONSTRUCTION.  42 

company  which  supplies  water  to  cities  and  public  institutions,  in  so  doing, 
is  not  exercising  the  rights  of  the  riparian  owner, 1  not  if  the  taking  affects 
injuriously  the  rights  of  other  riparian  owners.2 

A  company  authorized  to  make  a  lock  navigation  in  a  public  stream  has 
not  the  privilege  of  a  riparian  owner,  and  may  not  swell  the  waters  of  the 
stream  without  being  liable  for  damages  suffered  by  riparian  owners.3 

A  grant  of  the  right  to  divert  the  waters  of  a  brook  ' '  running  over  the 
grantor's  land"  does  not  confer  the  right  to  divert  the  two  streams  that  by 
their  junction  form  the  brook,  though  they  do  not  unite  until  after  leaving  the 
grantor's  land;4  but  an  appropriation  of  the  waters  of  a  stream  to  a  beneficial 
use  has  been  held  an  appropriation  of  its  tributaries5  above  the  point  of 
diversion.6 

63.  Appropriations  for  Industrial  Purposes. — The  extent  to  which  water 
may  be  appropriated  ior  industrial  purposes  by  a  riparian  owner  will  depend 
upon  a  reasonable  use,  having  regard  for  the  rights  of  other  riparian  owners, 
and  depending  not  a  little  upon  the  good  and  indulgent  neighbors  above 
and  below  him  upon  the  stream.  Appropriation  of  waters  for  steam-boilers 
has  been  held  reasonable  if  not  excessive,  but  such  a  use  has  been  held  not 
to  be  a  natural  want.7  It  has  been  held  that  a  riparian  owner  has  a  right  to 
pump  water  from  a  stream  to  a  reservoir,  and  to  convey  it  thence  by  pipes  to 
his  dwelling-house  upon  any  estate  at  a  distance  from  a  stream.  This  water 
may  be  applied  to  his  domestic  and  all  other  necessary  purposes,  provided  he 
takes  only  a"  reasonable  quantity  with  reference  to  the  size  of  the  stream  and 
the  rights  of  his  neighbors.  He  must  not  take  more  water  by  means  of 
machinery  than  he  otherwise  would  have  a  right  to  take.8 

A  railroad  company  owning  riparian  lands,  or  holding  them  by  lease,  and 
diverting  water  for  the  purpose  of  supplying  its  locomotives,  does  not  thereby 
exercise  its  right  of  eminent  domain,  and  consequently  its  right  to  the  water 
is  the  same  as  that  of  any  other  riparian  owner.  Therefore,  regardless  of  the 
needs  of  its  business,  it  cannot  enjoin  the  taking  of  the  water  by  a  water 
company  .duly  proceeding  under  the  power  of  eminent  domain. 9  The  fact 


1  Harding  v.  Stamford  W.  Co.,  41  Conn.  N.  Y.  Supp.  781. 

87;  Emporia  v.  Soden,  25  Kan.  588;  Med-  5  Low  v.  Rizor  (Oreg.),  37  Pac.  Rep.  82. 

way  Nav'.  Co.  v.   Romney,  9  C.   B.  N.   S.  6  Low  v.  Schaffer  (Oreg.  •,  33  Pac.  Rep. 

575;  Mills   v.   Waltham,    126    Mass.   422.  678. 

But  see  Gillis  v.  Chase  (N.  H.),  31  All.  7  28  Amer.  &  Eng.  Ency.  Law  954;  El- 
Rep.  18;  Vernon  Irrig.  Co.  v.  Los  Ange-  liott  v.  Fitchburg  R.  Co.  (Mass.),  loCush. 
les  (Cal.),  39  Pac.  Rep.  762.  191. 

2  Lord   v.   Meadville  W.   Co.   (Pa.),    26  8Norbury77.  Kitchin,  7  L.  T.  N.  8.685. 
W.  N.  C.  no.     See  Ingraham  v.  Camden  But  see  Broadmoor  Dairy  v.    Brooksidq 
W.  Co.,  82  Me.  335;  Re  Barre  W.  Co.,  62  W.    &  I.   Co.    (Colo.),    52    Pac.    Rep.   792 
Vt.  27.  [1897]. 

3  Monongahela  Nav.  Co.  v.  Coon,  6  Pa.  9  Philadelphia  &  R.  R.  Co.  v.  Pottsville 
St.  379.  Water  Co.,  38  Atl.  Rep.  404,  182  Pa.  St. 

4Petrie  v.  Hamilton  College  (Sup.),  40  418. 


43  WATER.     RIPARIAN  OWNERS.  §63. 

that  the  railroad  does  not  need  the  water  for  domestic  purposes  does  not 
entitle  it  to  use  it  for  other  purposes.1 

A  mill-owner,  having  the  subordinate  right,  must  take  notice  when  he  is 
infringing  on  the  right  of  his  superior,  and  not  reduce  the  water  so  low  as  to 
interfere  with  that  right;  and  if  he  does  so  reduce  it,  he  is  liable  for  all  the 
damages  sustained  by  the  owner  of  the  superior  right  by  delay  through  wait- 
ing for  the  water  to  accumulate.2 

1  Atty.-Gen'l  v.  Great  Eastern  Ry.  Co.  Garwood  v.  N.  Y.  Central  R.  Co.,  83  N. 

(Erig.j,    23    L.    T.    N.    S.   344;  Elliott   v.  ¥.400;  Swift  v.  Goodrich,  70  Cal.  103. 

Fitchburg    R.  Co.,  10  Cush.   195;  Penn-  a  Root  v.  Johnson,  26  Vt.  64  [1853], 
sylvania  R.  Co.  v.  Miller,  112  Pa.  St.  34;- 


CHAPTER   VI. 
WATERS   FOR   IRRIGATION   IN   ARID  COUNTRIES. 

71.  Irrigation  under  the  Common  Law. — Irrigation,  generally,  is  the 
operation  of  watering  lands  by  artificial  means  for  agricultural  purposes.  It 
is  also  defined  as  the  act  of  wetting  or  moistening  the  ground  by  artificial 
means.  While  the  strict  definition  is  the  application  or  use  of  waters  to 
the  soil  for  purposes  of  agriculture,  yet  most  of  the  statute  laws  providing  for 
irrigation  expressly  make  mining,  manufacturing,  and  other  industrial  uses 
of  water  lawful. 

At  common  law  irrigation  was  not  a  natural  want  which  authorized  an 
exclusive  or  undue  appropriation  by  a  riparian  owner.  The  right  to  irrigate 
for  the  simple  purposes  of  increasing  the  products  of  the  soil  was  subordinate 
to  the  natural  wants  of  other  riparian  owners,  such  as  were  necessary  for  their 
families,  tenants,  and  stock ;  i.e.,  their  uses  for  necessary  domestic  purposes. 1  * 
The  use  of  water  for  watering  the  soil  was  not  a  natural  want  when  there  was 
a  scarcity  of  water  for  the  domestic  uses  of  other  riparian  owners,  and  the 
right  to  divert  the  waters  of  a  stream  for  purposes  of  irrigating  lands  of  a  ripa- 
rian owner  was  always  subject  to  the  use  of  other  riparian  owners  for  natural 
wants,  and  was  permissible  only  when  there  was  no  excessive  diminution  of 
waters.2 

Under  the  common  law,  therefore,  the  appropriation  of  water  by  a  riparian 
proprietor  was  to  be  determined,  as  has  been  set  forth  in  the  preceding  chapter, 
by  the  reasonableness  of  the  use,  which  depended  upon  the  amount  of  water 
and  the  use  to  which  it  was  put  by  other  riparian  owners,  and  with  a  proper 
regard  for  their  rights  and  privileges  to  a  reasonable  use  of  the  waters  of  the 
same  stream.  It  permitted  only  a  reasonable  use  of  the  waters  of  a  stream 
for  irrigating  purposes,  and  the  question  of  reasonable  use  was  one  of  fact 
and  depended  upon  the  circumstances  of  each  particular  case. 3 

To-day  it  is  a  general  law,  based  upon  the  common  law,  that  the  right  to 

1  ii  Amer.  &  Eng.  Encyclopaedia  of  9  Ch.  455;  Mastenbrook  v.  Aiger  (Mich.), 

Law  846.  68  N.  W.  Rep.  213. 

2Embry  v.  Owen,  6  Exch.  353;  Wilts  3 See  n  Amer.  &  Eng.  Ency.  of  Law 

Canal  Co.  v.  Swindon  Water  Co.,  L.  R.  846,  847. 

*  See  Sees.  51-69,  supra. 


45  WATERS  FOR   IRRIGATION  IN  ARID    COUNTRIES.  §  72V 

use  water  for  irrigation  of  lands  is  subordinate  to  the  right  of  a  coproprietor 
to  supply  his  family,  tenants,  etc.,  their  natural  wants  for  necessary  and 
domestic  purposes.1  A  riparian  owner  may  take  as  much  water  from  a 
stream  as  is  necessary  for  watering  his  cattle  and  for  domestic  purposes,  even 
though  it  consume  all  the  water  of  the  stream.2 

If  the  domestic  wants  and  necessities  of  other  riparian  owners  are  sup- 
plied, a  reasonable  use  of  the  water  for  purposes  of  irrigation  may  be  had.3 
Its  use  must  be  shared  equitably  with  other  riparian  proprietors. 4 

A  riparian  proprietor  is  entitled  to  a  reasonable  use  of  the  waters  of  a 
stream,  which  has  been  denned  as  any  use  that  does  not  work  actual, 
material,  and  substantial  damage  to  the  common  right  which  each  proprietor 
has  as  limited  and  qualified  by  the  precisely  equal  right  of  every  other  pro- 
prietor.5 He  has  no  rights  in  the  corpus  of  the  water.6  He  may  not  obstruct 
the  stream,  as  by  a  dam,  so  as  to  prevent  the  water  running  substantially  as  it 
was  accustomed  to  run  in  its  natural  state.7  He  may  not  exhaust  a  head 
spring  upon  his  land  to  the  injury  of  lower  owners.8 

72.  Local  Irrigation  Laws. — In  England  there  was  little  need  of  laws  for 
the  irrigation  of  lands  in  comparison  with  the  great  necessity  for  irrigation  by 
artificial  means  in  America  and  Australia,  where  there  are  broad  tracts  of  arid 
and  unproductive  lands  which  can  be  made  fruitful  only  by  irrigation.  It 
may  therefore  be  expected  that  the  English  common  law  affords  but  few 
decisions  upon  the  subject  of  irrigation,  and  those  cases  that  have  come  before 
the  courts  have  been  determined  upon  the  same  principles  as  have  been  explained 
by,  and  described  in,  the  foregoing  and  succeeding  chapters  upon  the  diversion, 
detention,  and  appropriation  of  waters.  In  the  early  history  of  the  United  States, 
when  only  the  eastern  part  of  the  country  was  inhabited,  developed,  and  im~ 
proved,  there  was  little  more  necessity  for  laws  upon  the  subject  of  irrigation 
than  had  existed  in  England ;  but  as  the  march  of  civilization  ' '  wended  its 
westward  way, "  and  was  met  by  the  broad,  arid  expanse  of  desert  which  covers, 
parts  of  the  western  and  Pacific  states,  and  the  development  and  cultivation 
of  the  lands  of  these  states  became  dependent  upon  the  economical  use  and 
application  of  water,  special  laws  had  to  be  enacted  which  should  encourage 

1  Baker  v.  Brown,  55  Tex.  377.  5  Union    M.    &  M.    Co.    v.    Dangberg, 

2  Union  M.  &  M.  Co.  v.   Dangberg,  2       2  Sawyer  450;    Lux  v.   Haggin,  69   Cal. 
Saw.  450;  Ferrea  v.   Knipe,  28  Cal.  340;       255. 

Hale  v   McLea,  53  Cal.  578;  Lux  v.  Hag-  6  Union  M.  &  M.  Co.  v.  Dangberg,  2 

gin,  69  Cal.  255.    "  Saw.  450;  Eddy  v.   Simpson,  3  Cal.  249; 

3  Union  M.  &  M.  Co.  v.  Ferris,  2  Saw.  Hale  v.   Lea,  53  Cal.  578;  Pope  v.   Kin- 
176;  Ellis  v.  Tone,  58  Cal   289;  Anaheim  man,   54  Cal.   3;  Weiss  v.  Oreg.   I.  &  S. 
W.  Co.  v.  Semi-Tropic  W.  Co.,  64  Cal.  Co.,  13  Oreg.  496. 

185;  Swift  v.  Goodrich,  70  Cal.  103;  Hale  7  Ferrea  v.  Knipe,  28  Cal.  341;  Lobdell 

v.  McLea,  53  Cal.  578;  Larned  v.  Tange-  v.  Simpson,  2  Nev.  274;  Bliss  v.  Johnson, 

man,  65  Cal.   334;  Gould  v.  Stafford,   77  76   Cal.  597;  Taylor    v.    Welch,  6   Oreg. 

Cal.   66;  Coffman  v.    Robbins,    8    Oreg.  198;  Hayden  v.  Long,  8  Oreg.  244;  Coff- 

278.  man  v.  Robbins,  8  O/eg.  278;  Shively  v- 

4  Shook  v.  Colphan,  12  Oreg.  239.     See  Hume,  10  Oreg.  76. 

Low  v.  Schaffer  (Oreg.),  33  Pac.  Rep.  678.  8  Heming  v.  Davis,  37  Tex.  183. 


§  72-  OPERATIONS   PRELIMINARY    TO .  CONSTRUCTION.  46 

the  irrigation  of  the  arid  lands  of  these  states,  and  which  should  secure  to  those 
parties  who  should  design,  develop,  and  construct  irrigation  works  the  assur- 
ance that  their  investments  should  be  protected,  and  that  they  should  have 
the  benefit  of  prior  appropriation  of  water  and  of  prior  occupation  of  the 
fields.  To  accomplish  this  several  of  the  states  have  incorporated  into  their 
constitutions,  provisions  which  in  effect  make  the  waters  of  springs  and 
streams  public  property,  and  which  expressly  provide  that  the  common-law 
doctrine  of  riparian  rights  shall  not  obtain  or  be  in  force  in  that  particular 
state  or  territory. l 

This  desired  effect  is  usually  obtained  by  provisions  in  the  constitutions 
of  the  states  containing  arid  lands  by  which  "  the  water  of  every  natural 
stream  in  the  state  or  territory  is  declared  to  be  the  property  of  the  public 
and  to  be  subject  to  the  regulation,  control,  and  appropriation  of  the  state  in 
the  manner  prescribed  by  the  statute  laws  of  the  state. ' ' 2 

The  common-law  doctrine  of  water  rights  thereby  has  been  superseded,3 
and  these  constitutional  provisions  have  usually  been  supplemented  by  special 
legislative  acts  providing  for  the  formation,  organization,  and  government  of 
irrigation  districts  or  companies,  with  privileges  and  restrictions  which  are 
calculated  to  confer  the  greatest  benefit  to  the  largest  area  and  to  the  greatest 
number  of  residents  in  the  arid  district,  affording  protection  to  the  money 
invested  in  the  improvement.  In  some  states,  as  California  and  Colorado, 
these  laws  provide  for  the  creation  and  government  of  such  districts  or  com- 
panies in  considerable  detail,  but  they  are  altogether  too  voluminous  to  be 
included  in  a  book  of  this  character.  They  provide  for  the  construction  of 
irrigating  canals  or  ditches,  define  the  rights  and  liabilities  of  the  persons  who 
build  the  irrigating  channels,  determine  the  relative  rights  of  the  different  irri- 
gating companies  or  associations,  their  priorities,  and  the  amount  of  water  which 
each  may  appropriate  under  the  conditions  of  its  creation  and  organization. 
They  also  usually  provide  for  the  taxing  or  assessing  of  the  district  which  is 
to  be  benefited,  and  for  the  relative  rights  of  the  persons  who  demand  water 
for  irrigating  or  other  beneficial  purposes  from  such  companies  or  associations. 
In  some  states  such  companies  are  made  common  carriers,  and  as  such  do 
not  and  cannot  have  any  property  in  the  water  itself,  but  are  permitted  only 

1  Reno  S.  M.  &  R.  v.  Stevenson  (Nev.),  the    United    States    Senate,  in    1890,    on 
4  Law  Rep.  60  [1889].  Irrigation     and     Reclamation     of    Arid 

2  See    subject    of    "Waters    or  Water  Lands,"  Public  Documents,  in  4  vols. 
Rights"    in    the    constitutions    -of    the  3  The  courts  of  the  state  of  Nevada  and 
several    states    of   California,  Colorado,  Washington  have  declared  that  the  corn- 
Idaho,  Montana,   North    Dakota,  Wash-  mon-law  doctrine  of  riparian  rights  was 
ington,  and   Wyoming,   and    the    special  unsuited  to  the  conditions  there  existing, 
irrigation  laws    enacted  by  the  legisla-  Reno  S.  M.  &  R.  v.  Stevenson  (Nev.),  4 
tures    of    Arizona,  California,  Colorado,  Law   Rep.  60  [1889];   Benton  v.  Johncox 
North    and    South    Dakota,  Idaho,  Kan-  (Wash.),  49  Pac.  Rep.  495. 

sas,  Montana.    Nebraska,   Oregon,   New  The     colonization     law    of  Texas   and 

Mexico,    Texas,    Utah,    and     Wyoming,  the    statutes  of  the  state   recognize  the 

which  are  collected   and   published   in  a  right   to   use   water    for    irrigation    pur- 

"  Report    of    the    Special   Committee    of  poses.     Tolle    v.   Correth,   31    Tex.   362. 


47  WATERS  FOR   IRRIGATION  IN  ARID    COUNTRIES.  §  73. 

to  charge  for  the  transportation  or  conduct  of  the  water  from  place  to  place 
and  the  delivery  of  the  same  to  the  parties  who  have  the  right,  under  the 
laws,  to  demand  a  reasonable  and  proportionate  use  of  the  water  so  carried. 
This  right  to  demand  the  use  of  waters  depends  largely  upon  the  priority  of 
application  for  water,  the  location  of  the  land  with  respect  to  the  ditch  or  to 
the  stream  from  which  the  water  is  taken,  and  in  some  cases  it  depends  upon 
the  benefit  to  be  derived  from  the  use  of  such  water. 

The  different  methods  of  enforcing  these  regulations,  whether  by  commis- 
sioners, or  by  boards  representing  irrigation  districts,  or  by  the  courts,  are 
matters  with  which  the  engineer  usually  has  not  to  concern  himself,  and 
which  are  matters  of  procedure  in  different  jurisdictions  or  states  where  litiga- 
tion may  arise.  To  prepare  a  thorough  digest  and  exposition  of  the  law 
upon  the  subject  of  irrigation  in  the  different  states  would  make  too  large  a 
book,  and  therefore  the  reader  must  be  content  with  a  general  exposition  of. 
the  subject,  such  as  may  be  contained  in  a  chapter  of  a  few  pages. 

Any  engineer  who  is  engaged  in  the  subject  of  irrigation  is  recommended 
to  secure  from  the  Federal  Government  a  copy  of  an  excellent  work,  Report 
of  the  Special  Committee  of  the  U.  S.  Senate  on  the  Irrigation  and  Reclama- 
tion of  Arid  Lands,  in  four  volumes,  published  by  the  Government  in  1890, 
which  contains  the  constitutional  and  statute  laws  of  all  the  states  as  they 
existed  at  that  time,  and  in  addition  thereto  many  decisions. 

It  must  be  understood  that  what  is  herein  contained  is  the  law  as  it  has 
been  determined  by  the  courts  under  the  constitutions  or  statutes  of  the 
several  states,  and  that  while  it  has  a  general  application  throughout  the 
states  which  contain  arid  districts,  it  cannot  be  taken  literally  for  any  partic- 
ular state  or  jurisdiction. 

73.  Irrigation  Rights  by  Prior  Appropriation. — The  early  settlement 
and  development  of  the  arid  districts  of  the  western  and  Pacific  states  was 
owing  to  mining  operations,  the  successful  conduct  of  which  required  large 
supplies  of  water.  The  country  being  wild  and  uninhabited,  the  question  of 
riparian  rights  did  not  then  arise,  because  riparian  owners  did  not  exist;  nor 
was  there  conflict  between  mining  and  the  various  industrial  uses  of  agricul- 
ture, milling,  and  manufacture,  because  the  latter  were  not  developed.  The 
operations  of  mining  having  the  prior  right  of  possession  and  use,  and  being 
the  chief  industry,  the  courts  upheld  such  prior  rights  to  water  as  para- 
mount, upon  the  ground  of  local  customs  and  local  laws,  and  in  order  to 
foster  and  encourage  the  greatest  industry  of  the  country. 

After  the  courts  of  the  territories  and  states  had  accepted  this  doctrine 
of  the  right  of  prior  appropriation  and  use  for  some  years,  it  was  recognized 
by  act  of  Congress,  July  26,  1866, l  and  became,  either  by  original  adoption 

1  Atchison    v.  Peterson,  20  Wall.   507:       v.    Crafts.    53    Cal.    135;    Osgood    v.    El 
Basey  v.  Gallagher,  20  Wall.  670;   Union       Dorado  W.  &  M.  Co.,  56  Cal.  571. 
M.  &  M.  Co.  v.  Ferris,  2  Saw.  176;  Cave 


§73-  OPERATIONS  PRELIMINARY   TO    CONSTRUCTION.  48 

or  by  amendment,  an  important  feature  in  the  constitution  of  those  states 
having  large  arid  districts. 

The  act  of  Congress  not  only  recognized  the  right  of  prior  appropriation, 
but  it  also  confirmed  rights  already  held  under  the  local  customs,  laws,  and 
court  decisions;  it  did  not  introduce  any  new  or  different  policy  on  the  part 
of  the  Government,  but  it  recognized,  sanctioned,  protected,  and  confirmed  the 
system  already  established,  and  provided  for  its  continuance.1  The  act  con- 
ferred upon  appropriators  of  water  from  a  natural  stream  the  right  to 
construct  ditches  across  the  public  lands,  subject  only  to  the  liability  of 
paying  for  any  damages  to  the  possession  of  a  settler  on  such  lands. 2 

These  rights  of  prior  appropriation  were  afterwards  extended  to  other 
beneficial  uses,  and  particularly  to  that  of  irrigation  for  agricultural  purposes. 
Colorado  is  said  to  be  the  first  state  to  recognize  the  miner's  law  of  prior 
appropriation  of  water  as  applicable,  with  restraining  interpretation,  to  bene- 
ficial use  in  agriculture.  The  state,  by  its  courts  as  well  as  by  legislation, 
recognized  as  fundamental  the  principle  of  the  public  nature  and  property  of 
all  natural  waters  lying  within  a  region  so  arid  that  agriculture  cannot  be 
carried  on  without  the  artificial  conservation  and  distribution  of  the  same. 
The  state  applied  two  qualifying  interpretations  to  the  doctrine  of  prior 
appropriation:  one  that  the  beneficial  use  which  is  the  basis  of  such  appro- 
priation of  water  must  necessarily  be  limited  in  its  application  by  the  wants 
of  all  other  subsequent  users — that  is,  that  an  appropriation  made  in  days 
when  necessity  was  unknown  could  not  be  construed  to  deprive  the  members 
of  a  growing  community  of  their  pro  rata  share  after  the  first  or  prior  appro- 
priator  had  received  his  portion ;  the  other,  that,  water  being  public  property, 
the  carriers  of  the  same  by  means  of  ditches  or  other  methods  can  claim  no 
ownership  or  possession  in  the  water  itself.  Their  remuneration  was  to  be 
derived  from  the  transportation  and  distribution  of  the  water  through  the 
channels  which  they  have  constructed  to  the  lands  on  which  it  is  needed. 
The  water  companies  were  and  are  common  carriers,  and  their  legal  status  is 
the  same  as  that  of  railroads  or  other  transportation  companies.3  As  public 
carriers  and  guast-public  servants,  they  are  charged  with  certain  duties  and 
subject  to  the  reasonable  control  of  the  state  in  consideration  of  the  privileges 
awarded  to  them.4  They  must  furnish  water  at  the  established  rate  to  the 
persons  using  it,  as  required  by  law,  and  by  the  articles  of  incorporation  if 
the  owner  be  a  company.5 

1  Jennison    v.     Kirk',    98     U.     S.    453;       of  Arid  Lands  by  Special  Committee   of 
Broder    v.    Natoma    W.   Co.,    101    U.   S.       U.  S.  Senate,  supra. 

274;    Vansickle    v.   Haines,   7    Nev.  249;  4  Price    v.  Riverside    L.  &    I.   Co.,   56 

Titcomb  v.   Kirk,   51   Cal.    288;  Jone^s  v.  Cal.  431;  McCrary   v.    Beaudry,  67  Cal. 

Adams,  19  Nev.  78.  120;  Wheeler  v.  Northern  Colo.  Irr.  Co., 

2  Hobart    v.    Ford,    6    Nev.   77;    Shoe-  10  Colo.  582. 

maker  v.  Hatch,  13  Nev.  261.  5  Golden  Canal  Co.  v.  Bright,  8  Colo. 

3  Hinton's    Report,    vol.   iv,    page    72.       144;  Wheeler  v.  Northern  Colo.  Irr.  Co., 
Report    on   Irrigation   and   Reclamation       10  Colo.  582. 


49  WATERS  FOR  IRRIGATION  IN  ARID    COUNTRIES.  §  ?4- 

74.  Prior  Appropriator  vs.  Riparian  Owners. — In  arid  districts  the 
waters  of  natural  streams  may  be  appropriated  by  an  upper  riparian  owner  for 
irrigation  of  land,  to  the  exclusion  of  the  use  thereof  by  a  lower  riparian 
owner  for  such  purpose. 1  A  valid  appropriation  of  the  waters  of  a  stream,  to 
the  exclusion  of  a  riparian  owner,  may  be  made  for  the  purpose  of  irrigation, 
though  the  lands  to  be  irrigated  are  not  located  on  the  banks  or  in  the 
neighborhood  of  the  stream.2  In  case  of  conflict  between  the  appropriators  of 
water  in  a  given  stream,  that  appropriation  that  is  first  in  time  is  first  in  right.3 

A  right  acquired  by  appropriation  of  water  flowing  through  public  land 
will  be  protected  as  against  a  subsequent  purchaser  of  such  land.4  A  prior 
appropriator  of  water  from  a  natural  stream  flowing  through  state  lands  has 
such  a  vested  right  to  the  use  of  the  water,  and  to  the  ditch  in  which  it 
flows,  also  constructed  on  said  lands,  as  will  defeat  the  claim  of  one  who, 
with  notice  of  such  diversion  and  existence  of  the  ditch,  obtains  from  the 
state  a  deed  for  the  premises  without  reservation  of  any  water  rights.5 

Miners  and  others,  in  a  i  gion  where  the  artificial  use  of  water  is  an 
absolute  necessity,  have  the  right,  though  not  riparian  proprietors,  to  appro- 
priate for  mining,  irrigation,  etc,  the  waters  of  non-navigable  streams  flowing 
through  the  public  lands,  so  far  as  not  already  appropriated  by  others.  The 
previous  establishment  of  a  government  reservation  below  the  point  of  appro- 
priation does  not  affect  the  right,  except  so  far  as  the  waters  of  the  stream 
have  been  previously  appropriated  for  the  use  of  such  reservation. 6 

A  law  which  gives  unappropriated  waters  of  a  natural  stream  to  the  public, 
which  may  appropriate  them  for  irrigation,  cannot  operate  on  the  rights  of 
riparian  owners  existing  when  the  law  was  passed,  but  is  intended  to  operate 
only  on  such  interest  as  the  state  had  by  reason  of  its  ownership  of  land 
bordering  on  natural  streams.7  One  who  has  appropriated  public  land 
acquires  a  right  to  the  use  of  water  flowing  through  it,  and  this  right  is  good 
as  against  every  one  except  the  Government  and  those  who  may  have 
acquired  prior  rights  thereto.8 

The  Civil  Code  of  California,  which  provides  that  "  the  rights  of  riparian 
proprietors  are  not  affected  by  the  provisions  of  this  title, ' '  declares  in  effect 
that  those  appropriating  water  under  previous  sections  shall  not  acquire  the 
right  to  deprive  of  the  flow  of  the  stream  those  who  shall  have  obtained  from 
the  state  the  title  to  or  right  of  possession  in  riparian  lands,  before  proceedings 
leading  to  appropriation  were  taken.9 

1  Barrett  v.  Metcalfe  (Tex.  Civ.  App.),  5  Carson  v.  Centner  (Oreg.),   52   Pac. 
33  S.  W.  Rep.  758.  Rep.  506  [1898]. 

2  Hammonds.  Rose  (Colo.),  19  Pac.  Rep.  6  Krall  v.  United  States  (C.  C.  A.),  79 
466  [1889];  Moyer  v.  Preston  (Wyo.).  44  Fed.  Rep.  241. 

Pac.  Rep.  845.     Semble  Hillman  v.  Hard-  7McGee  Irr.  D.  Co.  v.   Hudson  (Tex. 

wick  (Idaho),  28  Pac.  Rep.  438.  Sup.).  22  S.  W.  Rep.  967. 

8Dunniway  v.  Lawson  (Idaho),  51  Pac.  8  Crandall  v.  Woods,  8  Cal.  136;  Leigh 

Rep.  1032  [1898].  Co.  v.  Ind.  D.  Co.,  8  Cal.  323;  Huston  v. 

*  Ramelli  v.  Irish  (Cal.),  31  Pac.  Rep.  Byhee  (Oreg.),  2  Saw.  Rep.  568  [1889]. 
I  9Lux  v.  Haggin,  69  Cal.  255. 


§75- 


OPERATIONS  PRELIMINARY    TO    CONSTRUCTION. 


The  use  of  water  for  irrigation  of  a  district  has  been  held  to  be  a  public  use 
even  though  the  residents  of  the  district  did  not  have  the  right  to  use  the  water; 
and  an  assessment  imposed  to  pay  for  such  a  public  improvement  has  been 
held  not  to  be  a  depriving  of  a  landowner  of  his  property  without  due  process 
of  law.  If  each  landowner  has  the  right  to  use  a  proportionate  share  upon 
the  same  terms  as  all  the  others,  the  use  is  a  public,  and  not  a  private,  one.1 

75.  Priority  in  Appropriation. — When  the  right  to  the  waters  of  a  stream 
depends  upon  the  first  appropriation  of  the  waters  thereof,  promoters, 
engineers,  and  contractors  will  understand  that  it  means  "  a  hustle  "  between 
rival  companies  and  their  servants,  who  aim  to  secure  first  the  right  of  prior 
appropriator.  It  is  important,  therefore,  to  know  wrhat  constitutes  an  appro- 
priation in  the  matter  of  time,  as  much  as  in  the  act  itself. 

The  first  appropriator  of  water  from  a  natural  stream  upon  the  public 
lands  is  held  to  have  a  prior  right  thereto  to  the  extent  of  such  appropriation, 
if  it  was  for  a  beneficial  purpose, 8  and  so  long  as  the  water  is  applied  to  a 
beneficial  use.3 

An  appropriator  acquires  only  the  right  of  possession  and  use  of  the  water, 
qualified  by  the  rights  of  others  to  its  use,  in  such  manner  as  shall  not  materi- 
ally diminish  or  deteriorate  it,  at  the  place  of  his  appropriation  in  quantity  or 
quality.4.  The  persons  above  must  allow  the  water  to  flow  down  to  the  point 
of  diversion,  so  that  the  quantity  and  quality  ot  the  water  appropriated  shall 
not  be  diminished,  and  subsequent  appropriators  have  the  right  to  use  water 
from  said  stream  only  in  such  manner  as  shall  not  cause  any  positive  or  sensi- 
ble injury  to  former  appropriators.5 


1  Fallbrook  Irrigation  Dist.  v.  Bradley, 
17  Sup.   Ct.   Rep.   56;    reversing  68    Fed. 
Rep.  948. 

2  Atchison  v.   Peterson,  20   Wall.    507; 
Basey  v.   Gallagher,  20  Wall.  670;   Irvvin 
v.  Phillips,  5  Cal.  140;   Tartar  v.  Spring 
Creek  M.  &  Mg.  Co.,  5  Cal.  395;  Hill  v. 
Newman,  .5  Cal.  445 ;  Conger  v.  Weaver,  6 
Cal.    548;   Hoffman  v.   Stone,   7  Cal.   47; 
B.   R.  &  A.  W.  &  M.  Co.  v.  N.  Y.  Mg. 
Co.,  8  Cal.  327;  Hill  v.  King,  8  Cal.  336; 
Butte  Canal  &  Ditch  Co.   v.  Vaughn,   n 
Cal.    143;  Ortman  v.   Dixon,   13  Cal.  33; 
McKinney  v.  Smith,   21   Cal.   374;  Union 
Water  Co.  v.  Crary,  25  Cal.  504;  Davis  v. 
Gale,  32  Cal.   26;  Osgood  v.   El  Dorado 
W.    &    M.    Co.,    56    Cal.    571;   Himes    v. 
Johnson,  61   Cal.  259;   Brown  v.   Mullin, 
65   Cal.   89;  Junkans  v.    Bergin,   67  Cal. 
267;  Ware  v.  Walker,  70  Cal.  591;  Schil- 
ling v.  Rominger,  4  Colo.    100;  Coffin  v. 
Left  Hand  Ditch  Co.,  6  Colo.  443;  Wheel- 
er v.   Northern  Colo.   Irr.   Co.,    10  Colo. 
582;  Golden  Canal  Co.  v.  Bright.  8  Colo. 
144;   Hammond   v.    Rose,    n    Colo.   524; 
Lobdell  v.    Simpson,   2  Nev.    274;  Ophir 
Silver  Mg.  Co.  v.  Carpenter,  4  Nev.  534; 


Dalton  v.  Bowker,  8  Nev.  180;  Barnes  v. 
Sabron,  10  Nev.  217;  Strait  v.  Brown,  16 
Nev.  317;  Jones  v.  Adams,  19  Nev.  78; 
Atchison  v.  Peterson,  i  Mont.  561;  Bark- 
ley  v.  Tieleke,  2  Mont.  59;  Keeney  v. 
Carillo,  2  N.  M.  480;  Farmers'  High- 
line  Canal  v.  Southworth  (Colo.),  4  Law- 
yers' Rep.  767  [1889]  ;  Crane  v.  Winsor, 
2  Utah  248;  Monroe  v.  Ivie,  2  Utah  535; 
Kaler  v.  Campbell,  13  Oreg.  596. 

3  Wyatt  v.  Larimer  &  W.  Irr.  Co.  (Colo. 
App.),  29  Pac.  Rep.  906;  distinguish- 
ing Wheeler  v.  Irrigation  Co.,  10  Colo. 
582. 

4Columbia  Min.  Co.  v.  Halter,  i  Mont. 
296;  Alder  Gulch  Con.  Mg.  Co.  v.  Hayes, 
6  Mont.  31;  Gassert  z>.  Noyes  (Mont.), 
44  Pac.  Rep.  959. 

5  Bear  River  &  Auburn  W.  &  M.  Co.  v. 
N.  Y.  Mg.  Co.,  8  Cal.  327;  Hill  v.  King, 
8  Cal.  336;  Butte  Canal  &  Ditch  Co.  v. 
Vaughn,  n  Cal.  143;  Phoenix  Water  Co. 
v.  Fletcher,  23  Cal.  482;  Natoma  W.  & 
M.  Co.  v.  McCoy,  23  Cal.  491;  Nevada 
Water  Co.  v.  Powell,  34  Cal.  109;  Stein 
Canal  Co.  v.  Kern  Island  Irr.  Co.,  53 
Cal.  563;  Lobdell  v.  Simpson,  2  Nev.  274; 


$1  WATERS  FOR  IRRIGATION  IN  ARID    COUNTRIES.  §  75. 

Unless  the  prior  appropriates  is  entitled  to  all  the  water  of  a  natural 
stream,  he  cannot,  in  the  nature  of  things,  identify  certain  specific  water  as 
belonging  to  himself  while  the  same  remains  in  the  natural  channel.  So  long 
as  he  is  able  to  secure  the  full  amount  of  water  to  which  he  is  entitled,  he 
will  not  be  heard  to  complain  that  others  are  diverting  its  waters.1 

On  the  other  hand,  a  prior  appropriator  may  not  extend  his  use  of  the 
waters  to  the  prejudice  or  injury  of  subsequent  appropriators.2  His  rights 
are  fixed  by  his  appropriation,  and  when  others  locate  on  the  stream  or 
appropriate  the  water,  he  cannot  enlarge  his  original  appropriation,  or  make 
any  change  in  the  channel  to  their  injury.  Each  subsequent  locator  or 
appropriator  is  entitled  to  have  the  water  flow  in  the  same  manner  as  when 
he  located.3 

Under  a  statute  providing  that,  "as  between  appropriators,  the  one  first 
in  time  is  the  first  in  right,"  the  court  must  determine  the  date  and  amount 
of  each  appropriation,  and  from  these  facts  determine  the  priority  of  right.4 

Priority  of  right  has  been  held  to  apply  not  only  to  the  original  appro- 
priators of  the  waters  from  the  stream,  but  to  the  consumers  or  water-takers 
from  the  ditch,  5  but  not  as  against  the  company  itself  that  has  built  the 
ditch.6 

Notice  of  Appropriation. — It  is  sometimes  required  that  notice  of  the 
appropriation  be  given  and  posted,  after  which  a  reasonable  time  is  given  to 
complete  the  canal  and  works.7  The  notice  must  be  sufficient  to  put  a 
prudent  man  on  inquiry.8  A  notice  of  intention  to  appropriate  water  is 
evidence  of  possession,  but  of  itself  alone  it  is  not  sufficient.  Taken  with 
other  acts  it  amounts  to  sufficient  evidence.  It  forms  one  of  a  series  of  acts 
which  taken  together  perfect  the  right.9 

A  notice  duly  posted  is  not  affected  or  postponed  by  a  second  notice  to 
take  the  same  water,  made  while  prosecuting  the  work.  The  claimant  does 
not  thereby  abandon  his  rights  under  the  first  notice.  Notices  of  intention  to 

Crane    v.    Win.sor,    2    Utah    248;    Reno  4  Kirk  v.  Bartholomew  (Idaho),  29  Pac. 

Smelting   M.   <&   R.   Works  v.  Stevenson  Rep.  40  and  42;  Riverside  Water  Co.  v. 

(Nev.),  4  Lawyers'  Rep.  60  [1889];  Coker  Sargent  (Cal.),  44  Pac.  Rep.  560. 

v.  Simpson,  7  Cal.   340;  Kleinschmidt  v.  5  Farmers'   High-line  Canal  v.   South- 

Greiser  (Mont.),  37  Pac.  Rep.  5.  worth   (Colo.),   4   Law     Rep.   767  [1889]. 

1  Saint    v.  Guerrerio  (Colo.   Supp.),  30  But  see  Wyatt  v.  Larimer  &  W.  Irr.  Co. 
Pac.  Rep.  335.  (Colo.  App.),  post. 

2  McKinney    v.    Smith,    21     Cal.    374;  6  Wyatt    v.    Larimer     &    W.    Irr.    Co 
Nevada  Water  Co.  v.  Powell,  34  Cal.  109;  (Colo.  App.),  29  Pac.  Rep.  906. 
Higgins    v.   Barker,   42    Cal.   233;    Stein  7    Dyke    v.    Caldwell    (Ariz.),    18    Pac. 
Canal    Co.    v.    Kern    Island    Irr.    Co.,  53  Rep.  276. 

Cal.   563;  Brown  v.   Mullin,   65   Cal.   89;  8  Kimball  v.  Gearhart,  12  Cal.  27;  Rob' 

Junkans  v.  Bergin,  67  Cal.  267;  Lobdell  inson  v.  Imperial  Silver  Mg.  Co.,   5  Nev. 

v.  Simpson,  2  Nev.  274;  Proctor  v.  Jen-  44.      See    Moyer    v,    Preston    (Wyo.),    44 

nings,  6  Nev.  83;  Sieber  v.  Frink,  7  Colo.  Pac    Rep.  845. 

148;  Larimer  County  R.  Co.  v.  People  ex  9  Conger  v.  Weaver,  6  Cal.  548;  Thomp- 

rel.,  8  Colo.  614.  son  v.  Lee,  8  Cal.  275;  Columbia  Mining 

3  Union   Mill  &   Mining    Co.   v.  Dang-  Co.  v.  Holton,  I  Mont.  296. 
berg  (C.  C.),  81  Fed.  Rep.  73. 


§75-  OPERATIONS  PRELIMINARY    TO    CONSTRUCTION.    '  $2 

appropriate  water  are  to  be  liberally  construed.1  The  notice  should  state  the 
time  and  place  of  diversion,  the  purposes  for  which  it  is  taken,  the  amount 
appropriated,  and  the  place  where  it  is  to  be  used,2  and  it  must  be  followed 
by  an  actual  appropriation  within  a  reasonable  time.  - 

Time  or  Date  of  Appropriation. — The  right  to  waters  of  a  natural  stream  is 
determined  by  priority  of  appropriation,  but  the  water  is  not  "appropriated  " 
until  it  is  applied  to  some  beneficial  use  *  For  certain  purposes  many  cases 
have  held  the  date  of  an  appropriation  of  waters  to  be  carried  back  to  the 
time  when  the  first  steps  were  taken  to  secure  it,  if  reasonable  diligence  had 
been  exercised  in  prosecuting  the  work,  although  the  appropriation  was  not 
deemed  complete  until  the  actual  diversion  and  use  of  the  waters.4 

The  waters  diverted  must  be  utilized  for  the  purposes  intended  within  a 
reasonable  time,  and  the  question  as  to  what  is  a  reasonable  time  is  a  question 
of  fact  depending  upon  the  circumstances  of  each  case. 5  The  law  does  not 
require  unusual  or  extraordinary  effort,  but  only  such  diligence,  constancy, 
or  steadiness  of  purpose  or  labor  as  is  usual  with  men  engaged  in  like  enter- 
prises who  desire  a  speedy  accomplishment  of  their  design — such  progress  as 
will  manifest  a  good-faith  intention  to  complete  the  works  within  a  reasonable 
time.6  It  has  been  held  that  due  diligence  was  exercised  when  an  appro- 
priator  had  posted  a  notice  of  appropriation  and  dug  a  ditch  15  or  20  feet  in 
length,  letting  water  into  it  on  or  about  the  middle  of  December,  made  a 
survey  in  January  following,  and  did  no  more  work  until  the  latter  part  of 
February,  because  he  was  building  a  house  on  the  land.7  The  fact  that 
defendant's  ditch  broke  before  the  water  reached  the  land  intended  to  be 
irrigated,  and  thus  enabled  another  to  first  apply  the  water  on  his  land,  was 
held  not  to  affect  the  prior  appropriation.8 

In  determining  whether  the  work  has  been  prosecuted  with  diligence  it  is 
proper  to  take  into  consideration  the  circumstances  surrounding  the  parties 

1  Osgood  v.  El  Dorado  Co.,  56  Cal.  571.  nett  (Oreg.),  45  Pac.  Rep.  472. 

2  Floyd  v.  Boulder  F.  &  M.  Co.  (Mont.),  5  Conger  v.  Weaver,  6  Cal.  548;  Maeris 
28  Pac.  Rep.  450.  v.  Bicknell,  7  Cal.  261;  Parke  v.  Kilham, 

3  Farmers'    High-line  Canal  v.   South-  8  Cal.  77;  Cardoza  v.  Calkins  (Cal.),  48 
worth    (Colo.),    4   Law.  Rep.    Ann.    767;  Pac.  Rep.  1010;  Kimball  v.  Gearhart,   12 
Bear  Lake   &  R.  W.  &    Irr.  Co.  v.  Gar-  Cal.  27;  Weaver  v.  Eureka  Lake  Co.,  15 
land,  17  Sup.  Ct.  Rep.  7.  Cal.   271;  Sieber   v.   Frink,  7    Colo.   148; 

4  Kelley  v.  Natoma  Water  Co.,  6  Cal.  Wheeler  v.  Northern  Colo.   Irr.   Co.,  10 
105;  Maeris  v.  Bicknell,  7  Cal.  261;  Kim-  Colo.  582;  Atchison  v.  Peterson,  i  Mont, 
ball  v.  Gearhart,   12  Cal.  27;  N.  C.  &  S.  561;     Keeney   v.   Carillo,   2    N.    M.    480; 
C.  Co.   v.  Kidd,   37  Cal.  282;  Osgood  v.  Ophir  S.  Mg.  Co.   v.  Carpenter,   4  Nev. 
Water  &  Mining  Co.,  56  Cal.  571;  Ophir  534. 

:S.   Mining  Co.  v.  Carpenter,  4  Nev.  534;  6  Kimball    v.    Gearhart,     12    Cal.    27; 

Irvvin  v.   Strait,    18   Nev.   436;  Sieber  v.  Ophir  S.  Mg.  Co.   v.    Carpenter,  4   Nev. 

Frink,  7  Colo.  148;  Wheeler  v.  Northern  534;  Water-supply  &  S.  Co.  v.  Larimer  & 

Colo.    Irr.    Co.,   10  Colo.    582;  Columbia  W.    Irr.   Co.    (Colo.),    51     Pac.    Rep.   496 

Mg.  Co.   v.  Holter,   I   Mont.    296;  Union  [1897]. 

M.  &  M.  Co.  v.  Dangberg  (C.  C.),  81  Fed.  7  Dyke  v.  Caldwell  (Ariz.),  18  Pac.  Rep. 

Rep.  73;  Water-sup.  £  Stor.  Co.  v.  Lari-  276  [1888]. 

mer  &  Weld  Irr.  Co.  (Colo.),  51  Pac.  Rep.  8  Wells  v.  Kreyenhagen  (Cal.),  49  Pac. 

496   [1897];    Nevada  Ditch  Co.   v.   Ben-  Rep.  128. 


53  WATERS  FOR   IRRIGATION  IN  ARID    COUNTRIES.  §  75- 

which  would  affect  the  undertaking,  such  as  the  nature  and  climate  of  the 
country,  the  conditions  of  the  weather,  and  the  difficulty  in  procuring  labor 
and  materials.1  The  matters  to  be  considered  are  those  incident  to  the 
enterprise  and  not  those  incident  to  the  person,  such  as  illness  of  the  appro- 
priator  or  his  want  of  pecuniary  means  to  prosecute  the  work.2 

During  construction  of  the  works  so  much  water  may  be  taken  as  is 
necessary  to  save  them  from  injury,  though  the  arrangements  for  diverting  and 
using  of  the  waters  are  not  complete  and  the  appropriation  is  not  perfected.3 

The  fact  that  one  of  three  originators  of  the  project  dropped  out  does  not 
affect  the  extent  of  the  appropriation  claimed,  but  it  all  inures  to  the  benefit 
of  those  who  carried  on  and  completed  the  construction  of  the  ditch. 4 

To  become  an  appropriator  of  water  it  is  not  necessary  to  construct 
canals,  ditches,  flumes,  or  other  works.  If  land  is  so  situated  that  it  is 
rendered  productive  by  the  natural  overflow  of  water,  .the  cultivation  of  such 
land  by  means  of  the  water  so  naturally  moistening  the  same  is  a  sufficient 
appropriation  of  such  water  to  the  amount  necessary  for  such  use.5  The 
method  of  diversion  is  immaterial ;  a  riparian  owner  may  pump  water  from  a 
stream  for  irrigation  purposes,  provided  he  takes  no  more  than  his  propor- 
tionate share.  The  amount  he  may  take  is  not  limited  to  that  necessary  for 
land  to  which  the  water  may  be  led  in  ditches  by  the  force  of  gravity,  but 
extends  to  the  taking,  by  pumps  or  otherwise,  of  water  necessary  to  irrigate 
lands  above  the  level  of  the  stream.6 

In  connection  with  the  subject  of  prior  appropriation  and  the  competition 
between  appropriators  to  first  acquire  water  rights  in  a  stream,  the  attention 
of  engineers  and  promoters  should  be  called  to  the  effect  of  estoppel  upon  the 
rights  of  competing  companies  or  persons.  If  a  person  who  has  a  right  by 
prior  appropriation  to  the  use  of  the  waters  of  a  stream  stands  by  and  allows 
another  to  purchase  from  a  third  party  wrongfully  claiming  to  have  the  right 
to  said  water,  without  asserting  or  making  known  his  claim,  he  may  be 
estopped  from  afterwards  asserting  that  claim.7  A  prior  appropriator  may 
not  stand  by  and  see  another  person  or  company  appropriate  the  water  of  the 
same  stream  at  great  expense  and  under  a  mistaken  idea  that  he  was  thereby 
acquiring  a  prior  right  to  the  waters  thereof,  and  not  inform  him  of  his  mis- 
take. 8  Some  courts  hold  that  there  must  be  some  degree  of  turpitude  in  the 
conduct  of  the  party  before  a  court  of  equity  will  estop  him  from  asserting 
his  title,  and  that  the  mere  fact  that  the  true  owners  knew  that  a  ditch  was 
constructed  at  heavy  cost,  and  that  it  was  maintained  and  used  without  any 

1  Kimball    v.    Gearhart,    12    Cal.     27;       45  Pac.  Rep.  472. 

Ophir  S.  Mg.  Co.  v.  Carpenter,  4  Nev.  534.  5 Thomas  v.  Guiraud,  6  Colo.  530. 

2  Ophir  S.  Mg.  Co.  v.  Carpenter,  4  Nev.  6Charnock  v.  Higuerra  (Cal.),  44  Pac. 
534;  Keeney  v.  Carillo,  2  N.  M.  480;  Cole       Rep.  171. 

v.  Logan  (Oreg.),  33  Pac.  Rep.  568.  7  Fabian  v.  Collins,  3  Mont.  215. % 

'Weaver  v.  Conger,  10  Cal.  233.  8  Parke  v.  Kilham,  8  Cal.  78;  Dalton  v. 

4  Nevada  Ditch  Co.  v.  Bennett  (Oreg.),       Rentaria  (Ariz.),  15  Pac.  Rep.  37  [1888]. 


§75-  OPERATIONS  PRELIMINARY   TO    CONSTRUCTION.  54 

objection  or  opposition  on  their  part,  was  not  sufficient  to  operate  as  an 
estoppel.1 

Beneficial  Use  of  Appropriation. — To  constitute  a  legal  appropriation 
under  the  irrigation  laws,  the  waters  must  be  applied  to  some  beneficial  use  or 
purpose.2  The  true  test  is  the  successful  application  of  the  waters  to  the 
beneficial  use  designed.  The  method  of  diverting  or  carrying  the  water  or  of 
making  the  application  is  immaterial.3 

The  right  of  appropriation  of  water  for  irrigation  depends  on  the  applica- 
tion of  the  water  to  the  intended  use,  and  not  on  the  capacity  of  the  irrigating 
ditch.4  An  appropriator  is  required  to  make  an  economic  use  of  the  water 
appropriated.  If  the  capacity  of  his  ditches  is  greater  than  is  necessary  to 
provide  for  such  use,  he  should  be  confined  to  the  amount  necessary  for  such 
economic  use,  though  less  than  the  capacity  of  his  ditches;5  but  if  a  settler 
construct  a  ditch  of  sufficient  capacity  only  to  irrigate  his  entire  tract  of 
irrigable  lands,  and  convey  the  water  to  only  a  small  portion  thereof,  it  is  an 
appropriation  to  the  extent  of  the  capacity  of  the  ditch  entitling  the  owner  to 
construct  and  maintain  ditches  to  other  portions  of  his  land,  provided  the 
total  amount  of  water  taken  does  not  exceed  the  capacity  of  his  original 
ditch.6  It  is  the  amount  of  irrigable  lands  each  proprietor  owns  that  is  the 
controlling  element,  and  not  the  amount  actually  under  cultivation  at  the  time. 7 

Appropriation  consists  of  diversion  and  use  for  a  beneficial  purpose  and 
within  a  reasonable  time  after  diversion.8  A  proprietor  of  a  water  right  is 
entitled  to  so  much  water  as  he  can  put  to  a  useful  purpose  on  his  lands 
within  a  reasonable  time  by  the  use  of  reasonable  diligence;  but  after  ten 
years  from  the  date  of  the  diversion  it  will  be  presumed  that  he  has  brought 
under  cultivation  all  the  land  intended  by  him  for  cultivation  by  the  use  of  the 
water.9  As  against  one  subsequent  in  right  a  prior  appropriator  can  hold 
only  the  maximum  quantity  which  he  has  devoted  to  a  beneficial  use  at  some 
time  within  the  period  by  which  his  right  would  otherwise  be  barred  for  non- 
user.  10  He  may  afterwards  re-enter  if  intervening  rights  have  not  attached. n 

Middle  Boggs  v.  Merced  Mg.   Co.,   14  berg  (C.  C.),  81  Fed.  Rep.  73. 

Cal.  279;  Anaheim  W.  Co.  v.  Semi-tropic  6  McDonald  v.  Lannen  (Mont.),  47  Pac. 

W.  Co.,  64  Cal.  185;  Stockman  v.  River-  Rep.  648. 

side  L.  &  I.  Co.,  64  Cal.  57;  Lux  v.  Hag-  7  Wiggins  v.  Muscupiabe  Land  &  Water 

gin,  69  Cal.  255.   And  see  Zimmler,  Admr.,  Co.  (Cal.),  45  Pac.  Rep.  160. 

v.  San  Luis  W.  Co.,  57  Cal.  221.  8Justice    Helm    of    Sup.  Ct.    Colorado 

2  Maeris  v.  Bicknell,  7  Cal.  261 ;  Weaver  before  U.  S.  Senate  Committee — Vol.  Ill, 
v.  Eureka  Lake  Co.,  15  Cal.   271;  Davis  Public    Documents,   Irrigation  and   Rec- 
v.   Gale,    32  Cal.   26;  Sieber  v.   Frink,   7  lamation  of  lands,  1890;   Union  M.  &  M. 
Colo.    148;     Larimer    R.    Co.    v.     People  Co.  v.  Dangberg  (C.  C.),  81  Fed.  Rep.  73. 
ex   rd.    Luthe,   8  Colo.    614;  Wheeler  v.  9 Senior    v.    Anderson    (Cal.),    47   Pac. 
Northern   Colo.    Irr.   Co.,    10   Colo.    582;  Rep.  454;  Cole  v.  Logan  (Oreg.),  33  Pac. 
Dick  v.  Caldwell,  14  Nev.  167;  Farmers'  Rep.  568. 

High-line  Canal  v.   Southworth  (Colo.),  10  Smith  v.  Hawkins  (Cal.),  52  Pac.  Rep. 

4  Lawyers'  Rep.  767  [1889].  139  [1898]. 

3  Thojmas  v.  Guiraud,  6  Colo.  530.  n  Beaver    Brook  Res.  &   C.  Co.   z/.   St. 
*Lowv.  Rizor  (Oreg.),  37  Pac.  Rep.  82.  Vrain  Res.  &  Fish   Co.   (Colo.   App.)»  40 
5  Union   Mill   &   Mining  Co.   v.    Dang-  Pac.  Rep.  1066. 


55  WATERS  FOR   IRRIGATION  IN  ARID    COUNTRIES.  §  75-, 

Any  beneficial  use  will  sustain  a  right  acquired  by  appropriation,  but  the 
nature  of  a  use  may  determine  the  extent  of  the  appropriation.  When  water 
is  appropriated  from  a  stream,  the  rights  secured  are  limited  to  so  much  water 
only  as  is  necessary  for  that  purpose.  If  there  be  any  surplus,  it  may  be 
taken  by  others,1  and  at  such  times  as  it  is  not  needed  or  not  used  by  the 
prior  appropriator.2  The  prior  appropriation  gives  only  so  much  water  as 
was  appropriated  for  the  purpose  or  purposes  for  which  it  was  taken.  In 
subordination  to  that  amount,  the  remainder  of  the  water  in  the  stream  may 
be  taken  by  others.3 

Water  taken  for  a  mill  is  not  taken  as  an  article  of  merchandise,  to  be 
sold  in  the  market.  The  water  having  been  taken  for  use  as  a  motive  power 
and  having  subserved  that  purpose,  it  may  thereafter  be  taken  by  others.4  A 
diversion  for  the  purpose  of  drainage  simply,  and  not  to  apply  to  some  useful 
purpose,  is  not  an  appropriation  within  the  laws  of  California,  Colorado,  and 
Nevada.5 

Reasonable  Use. — In  ascertaining  whether  irrigation  is  reasonable,  its 
effect,  in  depriving  lower  owners  of  natural  irrigation,  is  to  be  considered  with, 
other  circumstances. 6  A  reasonable  use  has  been  stated  to  be  "  not  so  much 
whether  the  water  below  has  been  diminished  thereby  as  whether  the  lower 
owner  is  materially  injured  by  diminution,  injured  by  not  receiving  the 
benefit  in  due  proportion  to  which  he  and  other  owners  are  entitled."  7 

Mining,  Agricultural,  and  Industrial  Uses. — Both  the  Federal  Government 
and  the  Western  states  recognize  and  protect  the  use  of  water  for  mining 
purposes,  and  an  appropriator  of  the  water  of  a  natural  stream  cannot  recover 
damages,  it  seems,  for  the  pollution  of  his  water  by  mining  operations,  so  long 
as  the  quantity  is  undiminished.8* 

1Ortman  v.  Dixon,  13  Cal.  33;  McKin-  v.  Brown,    16    Nev.    317;    Chiatovich   v. 

ney  v.  Smith,  21  Cal.  374;  Davis  v.  Gale,  Davis,  17  Nev.  133;  Thomas  v.  Gutraud, 

32  Cal.  26;  Nevada  Water  Co.  v.  Powell,  6  Colo.  530. 

34  Cal.  109;  N.  C.  &  S.   C.  Co.  v.   Kidd,  4  McDonald  v.   Bear  River,  etc.,  Co., 

37  Cal.  282;   Edgar  v.   Stevenson.  70  Cal.  13  Cal.  220. 

286;  Butte  Canal  &  Ditch  Co.  v.  Vaughn,  5  Maeris  v.  Bicknell,  7  Cal.  261;  Weaver 
n  Cal.  143;  Barnes  v.  Sabron,  10  Nev.  v.  Eureka  Lake  Co.,  15  Cal.  271;  Davis 
217;  Simpson  v.  Williams,  18  Nev.  432;  v.  Gale,  32  Cal.  26;  Sieber  v.  Frink,  7 
Lobdell  v.  Simpson,  2  Nev.  274;  Sieber  Colo.  148;  Larimer  R.  Co.  v.  People  ex 
v.  Frink,  7  Colo.  148;  Union  M.  &  M.  rel.  Luthe,  8  Colo.  614;  Wheeler  v.  North- 
Co,  v.  Dangberg  (C.  C.),  81  Fed.  Rep.  73.  ern  Colo.  Irr.  Co.,  10  Colo.  582;  Dick  v. 

2  Smith  v.  O'Hara,  43  Cal.  371;  Barnes  Caldwell,    14   Nev.    167;    Farmers'  High- 
v.  Sabron,  10  Nev.   217;    Becker  v.  Mar-  line    Canal    v.      Southworth    (Colo.),     4 
ble'Cr.  Irr.  Co.  (Utah),  49  Pac.  Rep.  892  Lawyers'    Rep.    767    [1889];    Thomas    v. 
[1897].  '  Guiraud,   6  Colo.    530;  Wilsons.  Higbee 

3  Butte  Canal  &  Ditch  Co.  v.  Vaughn,  (C.  C.),    62    Fed.    Rfep.    723.      See    North 
ii   Cal.   143;  Ortman   v.    Dixon,    13   Cal.  Powder  Mill  Co.  v.  Caughanour  (Oreg.), 
33;    McKinney    v.    Smith,    21    Cal.     374:  54    Pac.    Rep.    223    [1898],    defining  uses' 
Nevada    Wate'r    Co.    v.    Powell,    34  Cal.  under  a  grant. 

109;    Higgins   v.    Barker,    42    Cal.    233;  6  Lux  v.  Haggin,  69  Cal.  255,  396. 

Brown  v.  Mullin,  65  Cal.  89;  Junkans  v.  7  Lux  v.   Haggin,  supra;  Van  Hoeson 

Bergin,  67  Cal.  267;  Lobdell  v.  Simpson,  v.  Coventry  (N.  Y.),  10  Barb.  518. 

2  Nev.  274;   Proctor  v.  Jennings,  6  Nev.  8  Bear  Riv.  W.   Co.   v.  N.  Y.   Mg.  Co.,. 

83;  Barnes  v.  Sabron,  10  Nev.  217;  Strait  8  Cal.  327. 

*  But  see  Sees.  201-229  and  217,  infra. 


§75-  OPERATIONS  PRELIMINARY   TO    CONSTRUCTION.  56 

In  California  the  rule  that  governs  the  rights  of  several  miners  located  on 
the  same  stream  is  that  each  is  entitled  to  use  in  a  proper  and  reasonable 
manner  both  the  channel  of  the  stream  and  the  water  flowing  therein ;  and 
where,  from  the  situation  of  the  claims,  the  natural  and  necessary  consequence 
of  the  working  of  some  claims  will  result  in  injury  to  others,  the  latter  must 
endure  it,  for  it  will  furnish  no  cause  of  action  to  the  party  injured.1  In 
California 2  and  Utah 3  the  appropriation  of  water  for  mining  purposes  is  open 
to  all  persons.  The  legislature  may  not  enact  laws  that  will  permit  an 
irrigating  company  to  control  the  waters  of  any  part  of  the  territory  in 
disregard  of  the  rights  of  individual  claimants.4 

However,  the  superior  right  of  miners  to  waters  depends  upon  priority  of 
appropriation ;  and  the  waters  of  a  stream  must  be  taken  and  used  in  such  a 
manner  as  not  to  interfere  with  or  injure  the  property  rights  of  others  pre- 
viously acquired.5  The  rights  to  work  mines  and  to  divert  the  water  from 
natural  channels  stand  upon  an  equal  footing,  and  when  they  conflict  they 
will  be  decided  by  the  priorities.6  If  both  rights  can  be  enjoyed  without 
interference  with  or  material  impairment  of  each  other,  the  enjoyment  of  both 
will  be  allowed.7 

Extent  of  Use. — An  appropriation  of  all  the  water  of  a  stream  means  all 
the  water  as  it  ordinarily  flows.  Another  person  may  take  the  surplus  in 
times  of  high  water  and  freshets.8  An  appropriation  for  a  beneficial  use  is  an 
appropriation  of  all  the  tributaries  thereof  above  the  point  of  original  diver- 
sion.9 If  a  person  or  company  be  entitled  to  all  the  waters  of  a  stream,  he 
may  enlarge  the  capacity  of  his  ditch  without  considering  other  ditch-owners.10 

By  the  erection  of  a  dam  across  a  natural  waterway  there  is  an  actual 
appropriation  of  the  waters  of  the  stream  down  to  that  point,  but  no  farther. 
What  water  flows  over  or  through  the  dam  any  one  may  appropriate.11  If  the 
dam  and  ditch  are  sufficient  for  the  purposes  for  which  the  appropriation  was 
made  in  the  natural  condition  of  the  stream  as  it  then  existed,  the  owner 
may  not  afterwards  raise  his  dam  higher  to  obviate  obstructions  to  its  use 
created  by  physical  changes  in  the  stream,  whether  natural  or  artificial,  if 
such  action  would  work  injury  to  subsequent  appropriators  who  were  not 
responsible  for  the  changes  in  the  stream. 12 

In  determining  the  quantity  of  water  appropriated,  it  is  proper  to  consider 
the  acts  of  the  person  or  company,  the  manner  in  which  the  ditch  was  con- 

1  Esmond  v.  Chew,  15  Cal.  137.  v.  Willett,  35  Cal.  534. 

2  Bear  Riv.  W.  Co.  v.  N.  Y.  Mg.  Co.,  8  Edgar  v.  Stevenson,  70  Cal.  286. 

8  Cal.  327.  9  Low  v.  Schaffer  (Oreg.),  33  Pac.  Rep. 

3  Monroe  v.  Ivie,  2  Utah  535.  678. 

4  Monroe  v.  Ivie,  2  Utah  535.  lo  James  v.  Williams,  31  Cal.  211. 

5  Wixon   v.   Bear   River,   etc.,  Co.,  24  n  Kelly  v.  Natoma  W.  Co. ,6  Cal.  105. 
Cal.  367;   Hill  v.  Smith,  27  Cal.  476;  Le-  But  see  Natoma  W.  &  Min.   Co.  v.  Han- 
varoni   v.  Miller,  34  Cal.   231;  Logan   v.  cock  (Cal.),  35  Pac.  Rep.  334. 
Driscoll,  19  Cal.  623.  12  Nevada  Water  Co.  v.  Powell,  34  Cal. 

6  Irwin  v.  Phillips,  5  Cal.  140.  109. 

7  Jennison  v.  Kirk,  98  U.  S.  453;  Clark 


57  WATERS -FOR   IRRIGATION  IN  ARID    COUNTRIES.  §75- 

structed,  the  general  size,  etc.  The  quantity  is  not  limited  to  the  amount 
first  turned  into  the  ditch,  unless,  by  the  general  pla/i,  size,  and  grade  of  the 
ditch,  it  was  not  capable  of  carrying  more  than  was  first  diverted.  If 
obstructions  or  irregularities  in  the  grade  of  the  ditch  diminished  the  amount 
that  its  general  size  would  indicate,  the  appropriator  will  be  allowed  a 
reasonable  time  to  remove  such  obstructions  or  change  the  grade,  and  to  then 
fill  the  ditch.1 

The  quantity  appropriated  is  to  be  measured  by  the  carrying  capacity  of 
the  ditch  or  flume  at  its  smallest  point,  where  least  water  will  pass  through.2 
The  capacity  of  a  ditch,  making  due  allowance  for  evaporation,  seepage,  etc., 
is  the  amount  of  water  that  it  will  carry  from  the  point  of  diversion  to  the 
point  of  use.3 

The  grantee  of  a  fixed  supply  of  water  is  not  required  to  reduce  the 
quantity  to  which  he  is  entitled  by  the  grant,  because  modern  appliances  give 
equal  efficiency  of  power  to  a  smaller  volume  of  water.4 

Measurement  of  Water. — The  measurement  of  a  ditch  to  determine  its 
carrying  capacity,  though  ordinarily  a  question  for  engineers,  has  been  made 
the  subject  of  judicial  determination.  It  has  even  been  held  not  a  question 
to  be  determined  by  an  expert  witness.5 

Water  in  arid  countries  is  usually  measured  by  the  inch  ("  miner's  inch  " 
or  "  water-inch  "),  which  is  that  quantity  of  water  that  will  flow  during  twenty- 
four  hours  through  a  circular  opening  one  inch  in  diameter  just  below  the 
surface  of  the  water.  It  is  about  500  cubic  feet.  The  words  "  inch  of  water  " 
have  been  held  not  to  have  acquired  such  an  arbitrary  meaning  that  will 
control  when  used  in  a  grant.  Evidence  of  the  surrounding  circumstances 
may  be  considered.6 

A  grant  of  so  much  water  "  out  of  a  pond  as  would  pass  through  a  hole 
10  inches  square  "  was  held  not  to  call  for  any  head  of  water.7  A  convey- 
ance of  the  right  "  to  tap  a  raceway  at  a  certain  point,  and  to  build  a  race  to 
a  mill,  and  to  use  from  the  raceway  "  a  certain  number  of  inches  of  water  for 
the  purpose  of  running  a  mill  was  held  to  be  a  grant  of  a.  certain  quantity  of 
water  to  be  measured  at  the  grantor's  raceway,  and  not  of  power  to  be 
measured  at  the  mill.8  A  grant  of  so  much  water  as  can  be  pumped  by  a 
certain  horse-power,9  "  except  sufficient  to  operate  the  mills,  which  is  limited 

1  Whiie  v.  Todds  Valley  W.  Co.,  8  Cal.  Cot.  M.  v.   Ford    (Wis.),  52    N.  W.   Rep. 
443.  764.     See  Barrows  v.  Fox  (Cal.),  32  Pac. 

2  Higgins  v.   Barker,  42  Cal.  233;  At-  Rep.     8n.    and    Marshall     v.     Hershey 
chison  v.  Peterson,  20  Wall.  507;  Ophir  (Pa.),    39  Atl.  Rep.  887   [1898],  and  Gray 
Mining    Co.   v.   Carpenter,   6    Nev.    393;  v.  Saco  W.-P.  Co.,  85  Me.  526. 
Caruthers  v.  Pemberton,  I  Mont.  in.  7  Gray  v.  Saco  W.-P.  Co.,  85   Me.  526. 

3  Union  Mill    &    Mining    Co.  v.  Dang-  But  see  Forrest  Mill.  Co.  v.  Cedar  Falls 
berg  (C.  C.),  81  Fed.  Rep.  73.  M.  Co.  (la.),  72  N.  W.  Rep.  1076. 

4  Hartwell  v.  Mutual  L.  I.  Co.  (N.  Y.),  8  Palmer    v.   Angel    (Sup.),    23    N.  Y. 
50  Hun  497  [1888].  Supp.  397. 

5  Frey  v.  Lowden,  70  Cal.  550.  9  City  Power  Co.  v.  Fergus  F.  W.  Co. 

6  Jackson     Milling     Co.     v.     Chandos  (Minn.),  56  N.  W.  Rep.  685. 
(Wis.),    52    N.    W.    Rep.    759;    Janesville 


§75-  OPERATIONS  PRELIMINARY    TO    CONSTRUCTION.  $8 

to  ioo  horse-power,"  was  held  to  reserve  only  so  much  as  was  required,  not 
exceeding  ioo  horse-power.1 

The  following  rule  has  been  approved  as  supported  by  expert  evidence,  and 
as  justifying  its  adoption  in  measuring  the  flow  of  water:  "  Multiply  the 
square  root  of  the  number  of  feet  in  the  head  by  8.025,  an<3  multiply  this 
result  by  the  square  feet  of  the  area  of  the  discharge,  and  the  result  is  the 
cubic  feet  of  discharge  per  second."  Engineers  will  recognize  in  this  rule 
the  familiar  formula  of  discharge:  vol.  =  V  2gh  .  A.  In  this  same  case  it  was 
held  that  a  rule  to  determine  the  head  by  measuring  from  the  crest  of  a  dam 
to  the  middle  of  the  tub-wheel — the  center  of  the  discharge  from  the  spouts 
being  several  inches  higher — was  not  justified  by  the  weight  of  expert  evidence 
and  authority  introduced,  but  that  the  nature  of  the  case  required  the 
measure  to  be  taken  from  the  center  of  the  orifice  of  discharge ;  and  the  court 
was  also  strongly  inclined,  for  the  same  reason,  to  the  opinion  that  the  area  of 
the  orifice  of  discharge  should  be  reduced  by  some  coefficient  of  contraction.  * 
The  grant  of  a  water  privilege  to  an  owner  of  a  sawmill  made  an  exception 
or  reservation  as  follows:  "  Except,  in  times  of  low  water,  when  it  is  wanted 
for  the  carding  of  cloth,  dressing,  and  grist-mill."  The  grantee  has  no  right 
to  use  the  water  when  it  is  wanted  for  the  purpose  named  in  the  exception. 
If  he  use  the  water  when  it  is  wanted  for  the  purpose  named,  he  will  be  liable 
for  the  damages  occasioned  by  such  use.  The  land  may  be  conveyed  and 
all  water  rights  reserved  to  the  grantor,  or  the  use  of  all  or  a  part  of 
the  water  of  the  stream  may  be  granted  as  a  mere  hereditament  of  the  fee  of 
the  land  retained.  This  is  true  notwithstanding  that  one  cannot  convey  the 
water  separate  from  the  land.  The  reservation  of  water  in  a  deed  will 
ordinarily  be  construed  as  a  reservation  of  a  measure  of  the  water,  and  not  for 
a  mere  use.  A  change  in  the  site  of  the  mill  by  a  mill-owner  has  been  held 
not  to  change  his  rights  to  take  as  much  water  as  before.3 

The  findings  of  a  referee  or  court  should  state  the  quantity  of  water  the 
plaintiff  is  entitled  to  have  flow  past  the  defendant's  ditch  in  inches  or 
gallons,  and  not  merely  by  fixing  the  width,  depth,  and  grade  of  the  ditch.4 
A  decree  enjoining  an  appropriator  of  water  against  diverting  from -a  stream 
any  greater  quantity  of  water  than  will  flow  through  an  iron  pipe,  of  a  certain 
size,  which  is  found  to  be  the  amount  required  by  him,  is  erroneous  where 
the  water  is  conducted  in  an  open  ditch  or  flume;  as  in  such  case  the  amount 
which  reaches  the  place  of  use  is  not  the  same  as  that  diverted,  and  the 
appropriator  is  entitled  to  such  an  amount,  allowing  for  waste,  as  will  yield 
the  amount  required  at  the  place  of  use,  and  he  is  not  obliged  to  substitute 
iron  pipes.5 

1  Moore  v.  Wilder  (Vt.),  28  Atl.  Rep.  *  Settlers'  Ditch   Co.    v.    Hayes   (Cal.), 
320.  22  Pac.  Rep.  1152. 

2  Hartwell  v.  Mutual  L.  I.  Co.,  50  Hun  5  Barrows  v.  Fox  (Cal.),  32   Pac.  Rep. 
497  [1888].  811. 

3  Root  v.  Johnson,  26  Vt.  64  [1853]. 


59  WATERS  FOR   IRRIGATION  IN  ARID    COUNTRIES.  §  75 

Where  there  was  no  mill  or  penstock  on  the  premises  at  the  time  a  deed 
was  executed  granting  a  right  to  the  quantity  of  water  which  would  pass 
through  a  given  aperture  under  15  feet  head,  it  will  be  inferred  that  the 
parties  meant  that  the  1 5  feet  head  should  be  measured  with  the  water  at  rest 
at  the  bulkhead.1 

The  grantee  of  a  right  to  take  from  a  bulkhead  and  flume  ' '  the  quantity 
of  water  which  shall  be  discharged  therefrom  through  an  aperture  of  200 
square  inches  at  the  gate  under  1 5  feet  head  ' '  is  entitled  to  a  constant  power 
equivalent  to  a  stream  of  water  discharged  through  such  an  aperture  with  such 
a  head.1 

Point  of  Diversion  or  Use. — The  point  of  diversion  of  the  water  to  which 
an  appropriator  is  entitled  may  be  changed  so  long  as  the  quantity  taken  is 
the  same  and  the  rights  of  others  are  not  injuriously  affected  by  the  change,8 
but  it  cannot  be  changed  if  the  rights  of  other  appropriators  are  invaded.3 
The  first  appropriator  cannot,  to  the  detriment  of  subsequent  appropriators, 
change  the  method  by  which  he  conveys  water  to  his  land,  so  as  to  increase 
the  waste  that  naturally  occurs  in  such  conveyances.4 

The  right  to  change  the  point  of  diversion  does  not  depend  upon  whether 
it  was  acquired  by  express  grant  or  by  prescription.  Whether  such  right  rests 
in  the  parole  license  or  the  presumed  consent  of  the  proprietor,  he  may 
change  the  point  of  diversion  at  pleasure  if  the  rights  of  others  are  not 
injuriously  affected  by  the  change.  The  manner  in  which  a  right  was  secured 
relates  to  the  mode  of  determining  the  existence  and  extent  of  a  right,  and  not 
to  the  manner  of  its  exercise  and  enjoyment.5 

It  has  likewise  been  held  that  the  point  or  place  of  application  to  the 
beneficial  use  designed  or  to  the  particular  use  to  which  it  was  first  applied 
does  not  in  any  way  affect  the  right  acquired  by  prior  appropriation.6 

A  natural  watercourse  may  be  utilized  to  conduct  water  that  has  been 
appropriated,  and  when  a  person  or  company  avails  himself  (itself)  of  such 
stream  to  convey  the  water  appropriated  to  the  place  where  it  is  to  be  used 
or  recaptured,  he  (it)  does  not  abandon  the  water  or  lose  acquired  rights 
therein,  but  may  divert  the  same  quantity  wherever  he  (it)  desires  to  use  it.7 

1  Cummings  v.  Blanchard  (N.  H.),   36       i  Mont.  296;  Gassert  v.   Noyes  (Mont.), 
All.  Rep.  556.  44    Pac.    Rep.    959.     And  see   Wimer   v. 

2  Union    M.    &    M.    Co.    v.    Dangberg       Simmons  (Oreg.),  39  Pac.  Rep.  6. 

(C.  C.),    8 1    Fed.    Rep.   73;    McGuire    v.  *  Roeder  v.  Stein  (Nev.),  42  Pac.  Rep. 

Brown  (Cal.),  39  Pac.  Rep.  1060;  Kidd  v.  867. 

Laird,  15  Cal.  151;  Butte  Table  Mg.  Co.  5  Kidd  v.  Laird,  15  Cal.  161. 

v.  Morgan,  19  Cal.  609;  Junkans  v.  Ber-  6  Atchison    v.  Peterson,    20  Wall.   507; 

gin,  67  Cal.  267;  Sieber  v'.  Frink,  7  Colo.  Maeris   v.  Bicknell,    5  Cal.  261;  McDon- 

148;  Hobart  v.  Wicks,  15  Nev.  418;  Santa  aid  v.  B.  R.  &  A.  W.  &  Mg.  Co.,  13   Cal. 

Paula  Waterworks    v.  Peralta   (Cal.),  45  220;  Davis  v.    Gale,    32    Cal.    26;  Coffin 

Pac.  Rep.  168;  San   Luis   W.    Co.    v.  Es-  v.    Left-Hand   Ditch    Co.,    6    Colo.    443; 

trada  (Cal.),  48  Pac.  Rep.  1075.  Thomas  v.  Guiraud,  6  Colo.  530;  Wool- 

3  Butle   Table  Mg.  Co.    v.   Morgan,  19  man  v.  Garringer,  I  Mont.  535. 

Cal.  609;  Nevada  Water  Co.    v.  Powell,  7  Hoffman   v.   Stone,   7   Cal.  46;  Butte 

34  Cal.  109;  Columbia  Mg.  Co.  v.  Holler,       Canal  &  D.  Co.   v.  Vaughn,  n   Cal.  143; 


OPERATIONS   PRELIMINARY    TO    CONSTRUCTION.  60 

In  reclaiming  his  (its)  water,  care  must  be  taken  not  to  diminish  the  quantity 
to  which  prior  locators  or  appropriators  are  entitled.1  The  burden  is  upon 
him  (it)  to  show  that  he  (it)  has  not  taken  more  water  from  the  stream  than 
he  (it)  turned  into  it.2 

In  California  and  Colorado  depressions  or  ravines  on  the  public  lands 
which  include  the  bed  of  a  stream  may  be  utilized  as  reservoirs  for  storing 
waters  by  a  person,  but  he  must  see  to  it  that  no  legal  rights  of  prior  appro- 
priators or  other  persons  are  in  any  way  interfered  with  by  his  acts.3  The 
owner  of  land  has  no  right  to  construct  a  reservoir  for  the  storage  of  water  to 
be  disposed  of  for  irrigation  purposes  unless  he  appropriates  the  water  in 
accordance  with  the  provisions  of  the  constitution  and  the  statutes.4 

It  has  been  held,  however,  that  an  irrigation  company  cannot  lawfully 
conduct  seepage  or  surplus  water  from  lands  irrigated  by  it,  through  drains 
and  lakes,  into  a  canal  from  which  others  have  a  right  to  take  water  for 
irrigation  and  domestic  purposes,  to  their  injury.  The  owners  of  higher 
irrigated  lands  are  not  entitled  to  the  benefit  of  the  natural  flow  of  seepage 
water  therefrom  onto  lower  lands  owned  by  others.5 

When  a  natural  watercourse,  as  a  ravine,  is  utilized  as  part  of  a  ditch,  the 
one  diverting  the  water  into  the  watercourse  is  liable  for  injuries  to  lands 
resulting  from  an  overflow  caused  by  his  failure  to  have  it  properly  cleared 
from  obstruction,  or  by  reason  of  his  turning  into  it  a  quantity  of  water 
which,  added  to  the  natural  waters  flowing  in  it,  exceeded  its  carrying 
capacity.6 

76.  Abandonment  of  Irrigation  Eights, — When  the  waters  of  a  stream 
have  left  the  possession  of  a  party,  all  his  right  to,  and  interest  in,  them  are 
gone.7  If,  after  using  the  water,  he  allows  it  to  return  to  the  stream  without 
the  intention  of  using  it  again,  the  water  becomes  a  part  of  the  stream  and  is 
subject  to  appropriation  by  another.8  Even  though  he  be  a  prior  appropriator 
he  cannot  claim  water  after  it  has  been  abandoned  by  him  and  appropriated 
by  another.9  Waste  waters  which  are  returned  to  the  main  stream  or  its 
tributaries  become  a  part  of  the  waters  of  the  main  stream  and  tributaries,  as 
though  never  diverted,  and  inure  to  the  benefit  of  the  appropriators,  in  the 
order  of  their  appropriations.10  After  abandonment  a  prior  right  cannot,  by 

Davis  v.  Gale,  32  Cal.  26;  Ellis  v.  Tone,  5  North  Point  C.  Irr.  Co.  v.  Utah  &  S. 

58  Cal.  289;  Schulz  v.   Sweeny,   19  Nev.  L.    Canal   Co.   (Utah),  52  Pac.   Rep.    168 

359.      See   Gassert    v.    Noyes   (Mont.),  44  [1898].      But    see    Austin     v.     Chandler 

Pac.  Rep.  959.  (Ariz.;,  42  Pac.  Rep.  483. 

1  Butte  Canal  &  D.  Co.  v.  Vaughn,  II  6  Richardson  v.  Kier,  34  Cal.  63,  263. 
Cal.  143;  Burnett  v.  Whitesides,  15  Cal.  7  Eddy  v.  Simpson,  3  Cal.  249. 

35;  Wilcox  v.  Hausch,  64  Cal.  461.  8  Schulz  v.  Sweeny,  19  Nev.  359;  Smith 

2  Butte  Canal  &  D.  Co.  v.   Vaughn,   n  v.  Green  (Cal.),  41  Pac.  Rep.  1022;  Wool- 
Cal.  143;  Wilcox  v.  Hausch,  64  Cal.  461.  man  v.  Garringer,  I  Mont.  535. 

3  Larimer  Co.   R.  Co.  v.  People  ex  rel.,  9Eddy  v.  Simpson,  3  Cal.  249;  Barkley 
8  Colo.  614.  v.  Tieleke,  2  Mont.  59. 

4  Beaver   Brook   Res.   &  C.    Co.   v.  St.  10  Water  Sup.  &  Stor.  Co.  v.  Larimer  & 
Vrain  Res.  &  F.  Co.  (Colo.  App.),  40  Pac.  W.  Res.  Co.,  53  Pac.  Rep.  386. 

Rep.  1066. 


6l  WATERS  FOR  IRRIGATION  IN  ARID    COUNTRIES.  §  76. 

making  a  sale  of  the  same,  be  revived  in  favor  of  a  grantee,  even  if  the  same 
is  made  in  good  faith.1 

An  attempt  to  convey  a  water  right  by  an  imperfect  conveyance,  while  it 
may  not  operate  as  an  absolute  transfer,  does  clearly  operate  as  an  abandon- 
ment by  the  grantor  of  his  right  acquired  by  appropriation,  and  the  right  of 
the  buyer  relates  to  the  date  of  his  taking  possession  as  an  original  appropria- 
tion by  him.  2 

A  failure  to  use  water  for  a  time  is  competent  evidence  on  the  question 
of  abandonment.  If  nonuse  be  continued  for  an  unreasonable  period,  it  may 
fairly  create  'a  presumption  of  indention  to  abandon.  This  presumption  is 
not  conclusive  and  may  be  overcome  by  other  satisfactory  proofs.3  The 
rights  of  a  prior  appropriator  may  be  lost  by  his  acquiescence  in  an  adverse 
use  by  another  during  the  period  fixed  by  the  statute  of  limitations.4 

The  facts  that  water  was  appropriated  for  a  particular  purpose,  that  the 
purpose  has  been  fully  accomplished,  and  that  when  accomplished  the  appro- 
priators  dispersed  and  allowed  a  long  time  to  elapse  without  using  the  ditch 
and  then  sold  it  for  a  nominal  sum,  may  be  received  in  evidence  as  tending 
to  shown  an  abandonment.5  Evidence  of  nonuser  of  a  water-ditch  and  right 
to  appropriate  water  for  three  years  was  held  not  to  show  an  abandonment 
where  the  owners  testified  that  they  did  not  intend  to  abandon  their  right, 
and  it  appeared  that  one  of  them,  during  the  nonuser,  purchased  the  other's 
interest.6  An  appropriator  who  for  many  years  makes  no  use  of  the  water, 
allows  his  ditch  to  become  obliterated,  and  interposes  no  objections  to  the 
diversion  of  the  water  by  a  subsequent  appropriator,  will  be  presumed  to- 
have  abandoned  his  right  of  priority.7 

On  an  issue  as  to  whether  defendant  manifested  an  intention  to  abandon 
a  water  appropriation,  the  evidence  showed  that  defendant  faithfully  prose- 
cuted improvements  on  his  land,  adding  each  year  to  the  area  in  cultivation, 
and  provided  for  the  irrigation  thereof  from  other  and  more  convenient 
sources,  but  that  he  did  not  put  the  water  in  controversy  to  use  until  seven 
years  after  it  was  first  appropriated.  It  was  held  that  defendant's  intention  to 
abandon  had  not  been  established.8 

The  burden  of  proof  is  on  the  party  claiming  an  abandonment  of  a  water 
right.9 

When  water  has  been  appropriated  and  used  for  one  purpose,  as  mining 

1  Davis  v.  Gale,  32  Cal.  26.  5  Davis  v.  Gale,  32  Cal.  26. 

2  Barkley  v.  Tieleke,  2  Mont.  59;  Nich-  6Gassert    v.    Noyes   (Mont.),    44   Pac. 
ols  v.  Lantz  (Colo.  App.),  47  Pac.  Rep.  70.  Rep.  959. 

3  Davis  v.   Gale,  32  Cal.   26;  Wimer  v.  7Dorr  v.   Hammond,   7  Colo.   79;  Low 
Simmons  (Oreg.),  39  Pac.  Rep.  6;  Sieber  v.  Rizor  (Oreg.),  37  Pac.  Rep.  82  (thir- 
v.  Frink,   7   Colo.   148;  Tucker  v.  Jones  teen  years). 

(Mont.),  19  Pac.  Rep.  571  [1889].  8  Moss  v.  Rose  (Or.),  41  Pac.  Rep.  666. 

*  Union   Water   Co.    v.   Crary,   25  Cal.  9  Beaver    Brook  Res.    &  C.   Co.  v.  St. 

504;  Davis  v.  Gale,  32  Cal.  26;  Smith  v.  Vrain  Res.  &  Fish  Co.  (Colo.  App.),  40 

Logan,  18  Nev.  149.     But  see  Wimer  v.  Pac.  Rep.  1066. 
Simmons  (Oreg.),  39  Pac.  Rep.  6. 


§77-  OPERATIONS  PRELIMINARY  TO    CONSTRUCTION.  62 

•operations,  it  seems  it  does  not  become  public  property  unless  it  has  been 
turned  back  into  its  original  channel  without  any  intention  of  recapture. 
One  who  has  used  it  as  it  flowed  from  the  mine  does  not,  it  seems,  acquire 
any  rights  in  the  wasted  water  unless  it  has  been  abandoned.1 

One  of  several  original  appropriators  (tenants  in  common)  may  recapture 
water  that  was  abandoned  and  use  it  for  irrigating  his  own  fields  or  other 
lawful  purposes.2 

77.  Nature  of  Irrigation  Rights. — An  irrigating-ditch  and  the  water  right 
appurtenant  thereto  are  real  property,3  but  courts  of  equity  have  expressed 
some  doubt  as  to  whether  they  would  go  so  far  to  protect  such  property  as 
they  do  to  protect  land  held  and  cherished  for  itself.4 

A  water  right  acquired  by  a  user  of  water  under  a  contract  with  an  irriga- 
tion company,  being  an  easement  in  the  ditch,  is  an  incorporeal  hereditament 
-descendible  by  inheritance  to  the  owner's  heirs,  and  constitutes  a  freehold 
estate.5 

An  appropriator  of  water,  so  long  as  it  continues  to  flow  in  its  natural 
course,  acquires  no  specific  property  in  the  water  itself.  His  rights,  like  those 
of  a  riparian  owner,  are  strictly  usufructuary,  i.e.,  an  enjoyment  of  the  profit 
.and  advantage  of  a  thing  which  belongs  to  another,  like  a  tenant. 6 

The  water  itself  is  not  personal  property,  but  a  part  of  the  realty;  and 
although  an  appropriator  be  entitled  to  the  flow  of  the  water  undiminished  at 
the  head  of  his  ditch,  he  cannot  maintain  an  action  for  the  value  of  the  water, 
.as  for  personal  property  sold  and  delivered,  against  one  who  has  wrongfully 
-diverted  the  waters  of  said  stream.7  The  right  to  running  water  may  exist 
without  private  ownership  of  the  soil,  as  when  acquired  by  prior  appropria- 
tion. That  right  must  be  treated  as  a  right  running  with  land,  and  as  a  cor- 
poreal privilege  bestowed  upon  the  occupier  or  appropriator  of  the  soil.  As 
such  it  has  none  of  the  characteristics  of  personalty.8 

When  water  has  been  collected  and  stored  in  a  pond  or  reservoir,  the  one 
who  built  the  reservoir  acquires  a  vested  right  of  property  in  the  reservoir  and 
water,  of  which  he  cannot  be  divested  for  mining  or  other  private  purposes, 
and  a  court  of  equity  will  enjoin  miners  from  injuring  the  reservoir  or  divert- 
ing the  water  therefrom.9  It  is  only  when  water  has  been  separated  from  the 

1  Woolman  v.  Garringer,  I  Mont.   535.  4  Clark  v.  Willett,  35  Cal.  534. 

See  Davis  v.  Gale,    32   Cal.   26.     But  see  5  Wyatt  v.  Larimer  &  Weld   Irrigation 

McDonald    r.    Bear    Riv.,    etc.,    Co.,    13  Co.  (Colo.  Sup.),  33  Pac.  Rep.  144. 

Cal.    220,   and  Last  Chance  Min.   Co.   v.  6  Eddy  v.  Simpson,  3  Cal.  243;   Kidd  v. 

Bunker   Hill  Co.    (C.    C.  Idaho),  49  Fed.  Laird,  15  Cal.  161;  McDonald  v.  Askew, 

Rep.  430.  29    Cal.    200;   Alder    G.    C.    Mg.    Co.    v. 

2Meagher  v.  Hardenbrook  (Mont.),  28  Hayes,  6  Mont.  31. 

Pac.  Rep.  451.  7  Parks  C.  &  M.  Co.  v.  Hoyt,  57  Cal.  44. 

3  Hill   v.    Newman,   5   Cal.   445;  Lower  8  Hill  v.  Newman,  5  Cal.  445. 

Kings  D.  Co.  v.  L.  K.  R.  &  F.  C.  Co.,  60  9  Rupley  v.  Welch,  23  Cal.  452;  Jacob 

Cal.  408;  Dodge  v.  Marten,  7  Oreg.  456.  v.   Lorenz  (Cal.),   33   Pac.  Rep.  119.     See 

But  see  Tynon  v.   Despain  (Colo.   Sup.),  Butte  Table  M.   Co.    v.   Morgan,   19  Cal. 

43  Pac.  Rep.  1039.  609. 


63  WATERS  FOR  IRRIGATION  IN  ARID    COUNTRIES.  §  ?/. 

original  or  natural  source  of  supply  and  has  been  collected  in  reservoirs, 
pipes,  or  conduits  that  it  becomes  personal  property.  It  is  then  as  much  the 
subject  of  sale  as  ordinary  goods  and  merchandise.1 

When  several  persons  separately  appropriate  the  waters  of  a  stream  and 
are  severally  using  the  same  under  certain  regulations,  as  to  the  time  and 
manner  of  such  use,  they  are  tenants  in  common,  and  each  of  them  may 
maintain  an  action  to  enjoin  a  trespasser  from  diverting  any  portion  of  the 
water  thus  appropriated.2 

Owners  of  land  along  a  stream  associated  under  the  irrigation  laws,  as  a 
water  company,  become  tenants  in  common  of  the  water  of  the  stream,  and 
each  landowner  in  the  district  is  entitled  to  his  share  on  paying  his  propor- 
tion of  the  expense.3  As  tenants  in  common,  one  joint  owner  cannot  hold 
adversely  to  the  others  without  expressly  repudiating  their  rights.4 

Transfer  of  Wafer  Rights. — The  right  to  water  being  a  species  of  realty,  it 
requires  for  its  transfer  the  same  form  and  solemnity  as  is  required  for  the 
conveyance  of  any  other  real  estate.5  The  right  to  the  use  of  a  watercourse 
in  the  public  mineral  lands,  and  the  right  to  divert  and  use  the  water  taken 
therefrom  acquired  by  appropriation,  may  be  held,  granted,- abandoned,  or  lost 
by  the  same  means  as  a  right  of  the  same  character  issuing  out  of  lands  to 
which  a  private  title  exists.6 

A  sale  of  a  water  right  separate  from  the  land,  whereby  the  water  is  applied 
to  other  lands,  may  be  made  if  the  rights  of  others  are  not  infringed. 7. 

Irrigaiion  Rights  Appurtenant  to  Land. — A  right  which  secures  to  the 
owner  of  a  tract  of  land  water  for  irrigating  or  other  purposes  necessary  to  the 
beneficial  enjoyment  of  the  land  becomes  appurtenant  to  said  land  and  passes 
by  a  conveyance  of  the  land.8 

Under  the  Civil  Code  of  California,  which  provides  that  "a  thing  is 
deemed  to  be  incidental  or  appurtenant  to  land  when  it  is  by  right  used  with 
the  land  for  its  benefit,  as  in  the  case  of  a  way  or  watercourse,  or  of  a  passage 
for  light,  air,  or  heat  from  or  across  the  land  of  another,"  it  was  held  that 
when  a  landowner  appropriated  water  and  brought  it  on  his  land,  and  the 
land  could  not  be  advantageously  used  without  the  water,  the  fact  that  the 
license  to  convey  the  water  over  the  premises  of  another  was  revocable  did 
not  prevent  the  water  right  from  passing  as  appurtenant  to  the  land.9 

1  Heyneman  v.  Blake,  19  Cal.  579.  6  Union  Water  Co.  v.  Crary,  25  Cal.  504. 

2  Lyttle  Creek  W.    Co.    v.   Perdew,  65  'Cache  La  Poudre  Irr.  Co.  v.  Larimer 
Cal.  447.  &  Weld  Reservoir  Co.  (Colo.),   53  Pac. 

3  Smith  v.   North    Canyon    Water    Co.  Rep.  318  [1898]. 

(Utah),  52  Pac.  Rep.  283  [1898].  8Cave  v.  Crafts,  53  Cal.  135;  Farmer 

4Moss  v.  Rose  (Oreg.),  41  Pac.  Rep.  v.  Ukiah  W.  Co.,  56  Cal.  u;  Standart  v. 

666.  Round  Val.  W.  Co.,  77  Cal.  399.  But  see 

5Barkley  v.  Tieleke,2  Mont.  59;  Smith  Strickler  v.  Colorado  Springs,  16  Colo. 

v.    O'Hara,  43    Cal.    371.     And  see   Me-  61;  Bloom  v.  West  (Colo.  App.),  32  Pac. 

Donald  v.  B.    R. ,  etc.,    Co.,   13  Cal.  220;  Rep.  846. 

Union  Water  Co.  v.  Crary,  25  Cal.   504;  9  Crocker   v.    Benton    (Cal.),    28    Pac. 

Dalton  v.-  Bowker,  8  Nev.'igo.  Rep.  953. 


§77-  OPERATIONS  PRELIMINARY    TO    CONSTRUCTION.  64 

I 

The  right  to  the  use  of  water  for  the  irrigation  of  land,  together  with  the 
ditch  making  such  right  available,  was  held  to  become  so  attached  to  the 
land,  as  part  and  parcel  thereof,  as  to  pass  by  a  conveyance  of  the  land  with- 
out mentioning  the  water  right,  and  to  be  subject  to  the  liens  and  liabilities 
which  attach  to  the  land,  and  entitled  to  the  same  exemptions  as  the  land.1 

If  the  water  right  be  appurtenant  to  land,  it  will  pass  with  a  grant  of  the 
land  without  mention  being  made  thereof,  and  even  though  the  grantor  is  not 
aware  of  the  existence  of  the  right.2  A  transfer  by  parole  of  a  settler's  right 
of  entry  of  lands  carries  with  it  a  water  right  appurtenant  thereto,  entitling 
the  transferee  to  the  benefits  of  the  priority  of  the  appropriation. a 

A  public  use  of  water  from  a  public  stream  by  the  government  does  not 
become  appurtenant  to  the  soil,  so  as  to  pass  with  it  in  a  grant  to  private 
individuals;  but  such  use  is  thereby  abandoned,  unless  a  like  use  is,  by 
special  and  competent  stipulations,  passed  to  the  grantee.  One  who  derives 
title  through  a  patent  from  the  government,  "  subject  to  any  vested  and 
accrued  water  rights,"  is  estopped  from  claiming  as  an  appurtenance  an 
appropriation  of  water  from  a  public  stream  which  had  been  used  by  the 
government,  as  against  any  persons  who  acquired  rights,  as  appropriators, 
prior  to  the  issuance  of  the  patent.4  .  - 

Where  a  water  right  has  been  acquired  by  means  of  a  ditch  used  in  carry- 
ing it,  a  conveyance  of  the  ditch  is  a  conveyance  of  the  water  right. 5  A  right 
acquired  by  appropriation  for  the  purpose  of  operating  a  mill  on  the  stream 
passes  by  the  transfer  of  the  mill  property.6  This  is  not  true,  however,  if  the 
water  rights  be  not  the  property  of  the  grantor.7  The  converse  is  not  true, 
for  it  has  been  held  that  the  conveyance  of  the  right  to  use  the  water  of  a  river 
between  certain  points  did  not  convey  the  land  of  a  mill-site  on  the  river;* 
and  when  one  has  built  a  mill  upon  a  stream  and  appropriated  the  water- 
power  at  that  point,  he  does  not  by  the  conveyance  of  the  water  at  a  point 
above  his  mill  lose  his  prior  right  over  one  who  has  claimed  the  water  below 
the  mill  for  mining  purposes.9  The  purchase  by  a  mining  company  of  a  water- 
ditch  and  rights  appertaining  thereto  was  held  not  to  make  the  ditch  and 
water  rights  appurtenant  to  the  mining  claim. 10 

The  rights  to  water  of  a  trespasser  do  not  become  appurtenant  to  land 
which  he  occupies,  and  do  not  pass  to  a  purchaser  of  the  land  from  its  true 
owner.11  For  a  person  to  succeed  in  an  action  of  ejectment  he  must  show 
that  he  is  entitled  to  possession  of  the  premises,  but  he  is  not  required  to 

1  Franks.  Hicks  (Wyo.),  35  Pac.  Rep.  6 McDonald  v.  B.  R.,  etc.,  Co.,  13  Cal. 
475-  220. 

2  Turner  v.  Cole,  49  Pac.  Rep.  971.  7  Ginocchio  v.  Amador  C.  &  M.  Co.,  67 

3  McDonald  v.  Lannen  (Mont.),  47  Pac.  Cal.  493. 

Rep.  648.  8  Robinson  v.  Imp.  S.  Mg.  Co.,  5  Nev. 

4  Nevada  Ditch  Co.  v.  Bennett  (Oreg.),       44. 

45  Pac.  Rep.  472.  9  McDonald  v.  Askew,  29  Cal.  200. 

5  Williams    v.    Harter   (Cal.),    53    Pac.  10  Quirk  v.  Falk,  47  Cal.  453. 
Rep.  405  [1898].  "Smith  v.  Logan,  18  Nev.  149. 


65  WATERS  FOR  IRRIGATION  IN  ARID    COUNTRIES.  §  77 • 

show  that  he  is  entitled  to  the  enjoyment  of  a  stream  of  water  running  through 
his  land,  or  that  he  was  damaged  by  the  diversion  of  its  waters. l 

Right  of  Way  for  Irrigation  Canal  or  Ditch. — Under  an  act  of  Congress 
July  26,  1866,  an  appropriate!  of  water  from  a  natural  stream  has  a  right  to 
construct  a  ditch  across  public  lands  of  the  United  States,  subject  only  to  the 
liability  of  paying  for  any  damage  to  the  possession  of  a  settler  on  the  land.2 
This  act  operated  as  a  grant  of  such  rights  of  way,  and  of  such  ditches  through 
which  the  water  was  running  at  the  date  thereof,  as  had  been  constructed  over 
public  lands  prior  to  July  26,  1866,  and  in  which  rights  had  been  acquired 
and  recognized  by  the  local  customs,  laws,  and  decisions  of  the  courts.3 

An  appropriator,  as  against  subsequent  purchasers  from  the  United  States, 
has  the  right  to  go  upon  the  land  of  such  purchasers  higher  up  the  stream 
than  the  point  of  diversion  of  the  water,  and  remove  obstructions  in  the  bed 
of  the  stream  so  as  to  cause  its  waters  to  flow  in  their  natural  channel  to  the 
point  of  diversion.4 

The  grant  of  the  right  of  way  for  a  ditch  over  a  tract  of  land  is  an  ease- 
ment only,  and  not  a  grant  of  the  land  or  the  water  flowing  over  it.  When  an 
easement  is  granted,  nothing  passes  as  an  incident  to  such  grant  but  what  is 
necessary  for  its  reasonable  and  proper  enjoyment.5  However,  in  California 
it  has  been  held  that  a  deed  which  conveys  the  right  of  way  for  an  existing 
ditch  is  in  effect  a  conveyance  of  the  ditch  itself.6  In  Colorado  all  lands  are 
held  to  be  subordinate  to  the  dominant  right  of  others  who  must  necessarily 
pass  over. them  to  obtain  the  supply  of  water  to  irrigate  their  lands.  It  is 
not,  therefore,  necessary  that  there  should  be  a  conveyance  in  writing  to 
establish  an  easement  for  right  of  way  for  an  irrigating-ditch.7 

A  grant  of  the  right  to  all  water  in  a  stream^  and  of  the  right  to  enter  on 
the  land  of  the  grantor  and  construct  and  maintain  all  dams,  ditches,  pipes, 
or  flumes  necessary  and  proper  for  conveying  such  water  over  said  land  to 
the  place  of  its  use,  vests  in  the  grantee  the  right  to  convey  said  water  at 
different  times  and  places,  or  change  or  enlarge  his  ditch,  and  to  use  it  in  the 
manner  he  pleases  if  the  grantor  is  not  injured  by  such  use.8 

Public  land  is  appropriated  by  one  character  of  act,  and  water  by  another. 
The  digging  of  a  ditch  on  public  land  is  not  an  appropriation  of  land  for  a 
mill-site  nor  a  dam-site,  nor  is  the  mere  appropriation  of  a  mill-site  an 
appropriation  of  water  for  milling  purposes.9 

1  Dilley  v.  Sherman,  2  Nev.  67.  6  Reed  v.  Spicer,  27  Cal.  57. 

2  Hobart    v.    Ford,    6    Nev.    77;  Shoe-  7Yunkerz'.  Nichols,  i  Colo.  551. 
maker  v.  Hatch,  13  Nev.  261.  8  Spear  v.  Cook,  8  Oreg.  380;  Conger 

3  Broder    v.    Natoma   W.   Co.,   50   Cal.  v.  Weaver,  6  Cal.  548. 

621,  and  101  U.  S.  274.  9  Robinson  v.  Imperial  Silrer  Mg.  Co., 

4  Ware  v.  Walker,  70  Cal.  591.  5  Nev.  44. 

5  Miller  v.  Vaughn,  8  Oreg.  333. 


CHAPTER  VII. 

DETENTION  OF  WATERS  OF  STREAMS.    MILLS  AND    MILL 

RIGHTS. 

81.  The  Detention  and  Obstruction  of  Streams. — A  riparian  owner  may 
detain  the  waters  of  a  stream  to  a  reasonable  extent;  but  if  the  use  which 
he  exercises  be  not  a  reasonable  use,  he  is  guilty  of  a  nuisance  to  any  other 
riparian  owner  who  is  injured  thereby.1     An  excessive  diversion  of  water  for 
any  purpose  cannot  be  regarded  as  a  diversion  to  a  beneficial   use.2     The 
reasonableness  of  the  use  to  which  a  riparian  owner  is  entitled  is  a  question 
of  fact  to  be  determined  by  the  jury,  and  will  depend  upon  the  capacity  of 
the  stream,  the  number  of  people  entitled  to  its  use,  the  adaptation  of  the 
machinery,  and  all  attending  circumstances.3 

All  the  attending  and  conflicting  interests  and  uses  of  households,  mills, 
and  other  manufacturing  and  industrial  purposes  may  be  considered.  It  has 
been  held  that  water  might  be  detained  twice  a  year  for  six  days  at  a  time  in 
order  to  flood  cranberry-meadows,  even  though  such  detention  affected  the 
operations  of  a  grist-mill.4 

82.  The  Use  Must  Be  Beneficial  and  Reasonable. — If  water  in  its  natural 
state  be  useful  both  for  domestic  uses  and  for  watering  stock,  and  the  latter 
use  is  more  valuable  or  beneficial  for  all  the  owners  along  the  stream  than  for 
domestic  purposes,  then  the  less  valuable  must  yield  to  the  more  valuable 
use,  but  its  reasonable  use  for  all  purposes  should  be  preferred  if  possible.5 
The  use  of  water  for  the  operation  of  a  mill  has  been  held  to  be  superior  to 
the  water-supply  of  a  railroad  company.6     It  has  been  held  that  there  is.  no 
superiority  of  rights  acquired  in  the  water  of  a  stream   for  the  purpose  of 
irrigating    arable  land    over  rights   acquired   therein   for   mining   or    milling 
purposes.7 

1  28  Amer.  &  Eng.  Ency.  Law  955,  and  4  Hinchley    v.    Nickerson,     117    Mass. 
cases  cited;    Mason  v.    Hoyle,   56  Conn.  213;  Hetrich   v.   Deachler,  6  Pa.   St.   32. 
255  [1888].  And  see  Denison  Paper  Co.   v.   Robinson 

2  Union     Mill    &    Min.     Co.    v.    Dang-  Mfg.  Co.,  74  Me.  116,  as  to  the  uses  of 
berg  (C.   C.    D.   Nev.),  81   Fed.   Rep.   73,  water  by  a  mill  during  drought. 

citing  Combs  v.  Agricultural  Ditch  Co.,  5  Hazeltine  v.  Case,  46  Wis.  391. 

17  Colo.   146;  Ferrea  v.   Knipe,    28    Cal.  6  Louisville  &  N.  R.  Co.  v,  Beauchamp 

340;    Gibson    v.     Puchta,    33    Cal.    310;  __  (Ky.),  40  S.  W.  Rep.  679. 

Shotwell  v.  Dodga,  8  Wash.  337.  7  Union    Mill    &  Mining  Co.   v.   Dang- 

3  Mason  v.  Hoyle,  56  Conn.  255  [1888].  berg  (C.  C.),  81  Fed.  Rep.  73. 

66 


6/  DETENTION  OF   WATERS   OF  STREAMS.  §  83. 

The  fact  that  the  party  detaining  the  water  has  tapped  or  collected  new 
sources  of  supply,  and  that  the  lower  owner  is  receiving  more  water  than 
theretofore,  is  not  a  justification  of  the  detention  of  water.  The  justification 
must  be  a  reasonable  use,  and  no  one  whose  rights  are  injured  by  such  a  use 
has  a  right  of  action  without  showing  actual  damage.1 

A  wanton,  vexatious,  or  unnecessary  detention  of  waters  will  render  the 
owner  liable  in  damages  to  those  injured  thereby,2  but  parties  whose  rights 
are  not  affected  cannot  complain  of  the  nuisance.3  The  fact  that  the  lower 
owner  himself  partially  obstructs  the  stream  will  not  prevent  his  recovery 
against  one  who  obstructs  it  to  his  injury.4 

83,  Detention  of  Waters  by  Dams. — Rights  of  a  riparian  owner  to  the 
reasonable  use  of  the  water  of  a  stream  include  the  right  to  confine  and 
obstruct  its  flow  by  dams,  in  order  to  utilize  its  power,  and  to  use  it  for 
other  purposes.  He  may  hold  the  water  for  a  reasonable  length  of  time  for 
such  use,  even  though  it  interfere  with  the  rights  of  lower  owners  to  a  reason- 
able use  of  the  stream  in  its  natural  state.5  The  purpose  for  which  the  water 
is  collected  must  be  one  that  is  reasonably  adapted  to  the  stream  in  its  normal 
condition.  The  water  may  not  be  accumulated  for  any  purpose,  as  the  opera- 
tion of  machinery,  which  requires  more  than  the  usual  flow.  Waters  may 
be  detained  for  the  purpose  of  making  a  fish-pond,6  or  to  make  a  pond  from 
which  to  harvest  ice.7 

A  landowner  may  detain  the  water  of  a  stream  passing  through  his  land 
long  enough  for  the  proper  and  profitable  enjoyment  of  it.8  It  has  been  held 
that  a  cotton-mill  could  shut  off  the  water  at  night  notwithstanding  that  it 
was  to  the  disadvantage  of  paper-mills  below  it,  which  required  water  day  and 
night.9  The  use  of  the  water  of  a  stream  for  power  purposes  is  not  a  nuisance 
if  it  does  hot  obstruct  the  flow  of  water  above  the  proprietor's  lands  and  he 
restores  the  water  to  its  natural  course  before  it  leaves  his  lands.10  The 
natural  flow  of  water  may  be  stopped  until  a  mill-pond  is  full,  it  being  kept 
full  thereafter,  although  a  lower  mill-owner  may  suffer  an  impairment  of  his 
privilege. 1 

A  coffer-dam  was  held  not  a  dam  in  the  ordinary  acceptation  of  the  term, 


1Warez/.  Allen,  140  Mass.  513.  And  see  8  Platt   v.   Johnson   (N.  Y.),    15    Johns. 

Glassell  v.  Verdugo  (Cal.),  41   Pac.   Rep.  213. 

403.  9  Bullard  v.   Saratoga  Mfg.  Co.,  77  N. 

228  Amer.  &  Eng.  Ency.  Law  957,  and  Y.  525;  Louisville  &  N.  R.  Co.   v.  Beau- 

cases  cited.  champ  (Ky.),  40  S.  W.  Rep.  679. 

3  Groat  v.  Moak,  26  Hun  380.                   «  10  Ewing  v.   Colquhoun  (Eng.),  L.  R.  2 

4 Clarke    v.     French,     122    Mass.    419;  App.   Cas.  839;  Green   Bay  Co.  v.    Kau- 

Brown  v.  Dean,  123  Mass.  254.  kauna  W.   P.   Co.  (Wis.),  61   N.  W.  Rep. 

5  28  Amer.  &  Eng.  Ency.  Law  957.  1121. 

6  Wood  v.   Edes,  2  Allen    (Mass.)   580.  n  Gehlen  v.  Knorr  (la.),  70  N.  W.  Rep. 
7Gehlen  v.  Knorr  (la.),  70  N.  W.  Rep.  757;  Caldwell  v.   Sanderson,  69  Wis.   62; 

757;  De  Baum  v.  Bean  (N.  Y.),  29  Hun  Sparlin  v.  Gotcher  (Oreg.),  31  Pac.  Rep. 

236;  New  London  W.   Bd.  v.    Perry,  69  399. 
Conn.  461. 


§84.  OPERATIONS   PRELIMINARY    TO    CONSTRUCTION.  68 

in  a  statute  requiring  claims  for  damages  caused  by  overflow  of  water  by  the 
erection  of  dams  and  other  canal  improvements  to  be  made  within  a  year.1 

84.  Alternate  Obstruction  and  Release  of  Waters. — The  use  must  be 
adapted  to  the  capacity  of  the  stream.  In  determining  its  capacity,  its  con- 
dition throughout  the  year  is  to  be-  considered.  Where  there  is  an  ample 
supply  for  nine  months  and  a  scarcity  for  three,  this  scarcity,  if  it  occurs  so 
regularly  that  it  can  be  anticipated,  is  to  be  treated  as  a  fixed  quantity  in  the 
estimate,  and  as  so  far  reducing  the  capacity  of  the  stream.  A  reasonable  use 
must  permit  the  water  to  flow  in  its  accustomed  way,  so  far  as  it  can  be  done, 
and  a  beneficial  use,  though  a  limited  one,  be  made  of  the  reduced  stream. 
The  capacity  of  the  reservoir  of  the  upper  mill  does  riot  determine  its  right  to 
the  detention  of  the  water  nor  the  capacity  of  the  mill.  It  is  for  the  public 
interest  that  water-power  be  used  so  far  as  it  can  be,  if  the  majority  of  mill- 
owners  are  small  ones.  They  should  be  protected  against  such  a  use  of  the 
stream,  by  mills  disproportioned  to  its  capacity,  as  would  practically  deprive 
them  of  water  and  ruin  their  privileges.2 

A  reasonable  use  of  waters  entitles  a  landowner  to  release  and  discharge 
the  waters  in  order  to  employ  them  beneficially.  He  is  not  liable  for  injuries 
necessarily  caused  to  others  in  regard  to  the  rise  of  the  stream.3  If  the  with- 
drawal of  the  water  deprives  another  from  the  use  of  waters  to  which  he  is 
justly  entitled,  or  needlessly  deprives  him  of  the  beneficial  use  of  the  water, 
or  if  it  injures  or  destroys  another's  property,  a  case  for  damages  arises.4  A 
mill-owner  may  not  open  his  gates  and  let  water  run  to  waste  when  an  owner 
on  the  opposite  side  of  the  stream  takes  water  from  the  same  dam,  and  is 
entitled  to  all  the  water  not  needed  by  the  former.5  A  riparian  owner  may 
not  collect  large  quantities  of  water  in  the  wet  season  and  then  draw  it  off 
in  summer  so  as  to  cause  a  flood,  washing  away  banks  and  drowning  the 
land  of  other  riparian  owners.6  It  has  been  held  that  for  such  an  act  an 
action  for  trespass  vi  et  armis  would  lie.7 

The  owner  of  a  mill-dam  may  not  complain  because  an  upper  riparian 
owner  uses  the  water  so  as  to  expose  his  dam  to  the  sun,  the  operation  of  the 
mill  not  being  impeded.8  The  owner  of  a  water-power  right  is  not  liable  for 
allowing  the  water  to  run  through  his  wheel  at  night  to  prevent  it  from 
becoming  frozen.9 

The  fact  that  a  riparian  owner  who  has  a  right  to  a  certain  number  of 
cubic  feet  of  water  per  minute  constantly  wastes  part  of  the  water  so  pur- 
chased does  not  entitle  an  upper  owner,  who  took  subject  to  the  purchase,  to 

Peacock    v.    State  (N.   Y.),    n  N.  E.  N.  H.  478. 

Rep.  638  [1887].  7  Kelly  v.  Lett  (N.  C.),  13  Ired.  50. 

2  Mason  v.  Hoyle,  56  Conn.  255  [1888].  8  Louisville  &  N.  R.  Co.  v.  Beauchamp 

3  Drake  v.   Hamilton  W.  Co.,  99  Mass.  (Ky.),  40  S.  W.  Rep.  679.   Cattle  treading 
574.  and    tramping     a    dam,    see    Keller     v. 

4  28  Amer.  &  Eng.  Ency.  Law  959.  Fink  (Cal.),  37  Pac.  Rep.  411. 

5  Fuller  v.  Daniels,  63  N.  H.  395.  9Cummings  v.   Blanchard  (N.   H.),  36 
6Gerrish  v.   Newmarket  Mfg.   Co.,   30       All.  Rep.  556. 


<?9  DETENTION   OF    WATERS   OF  STREAMS.  §85. 

withhold  a  part  of  the  other's  water  equal  to  the  amount  which  the  other 
wastes. l 

One  not  injured  by  the  maintenance  of  a  dam  by  which  a  mill  is  operated 
cannot,  when  sued  by  the  mill-owner  for  obstructing  the  natural  flow  of  the 
stream  to  the  mill,  defend  by  setting  up  that  the  dam  was  constructed  by 
plaintiff  without  proper  authority.2 

85.  Backing  Up  and  Overflow  of  Waters  Dammed. —  In  raising  the  level 
of  waters  of  a  stream  on  one's  land,  he  must  be  careful  not  to  raise  the  natural 
surface  of  the  water  on  or  against  others'  lands.  If  he  do  so,  he  is  liable  for 
the  injury,  which  is  a  question  for  the  jury  to  decide,  whether  or  not  the 
alleged  obstruction  caused  the  injuries.3  If  another's  lands  are  overflowed  by 
a,  backing  up  of  the  water  and  damages  ensue,  the  one  causing  the  injury  is 
liable  for  the  damages  thereof;  but  no  action,  it  seems,  lies  unless  some  actual 
injury  is  sustained.4  If  the  dam  be  built  so  as  to  cause  the  overflowing  of 
another's  land  at  an  ordinary  or  expected  freshet,  the  owner  of  the  dam  will 
be  liable  for  the  injuries.5 

The  ordinary  stage  of  water  has  been  held  to  include  its  stage  or  level  in 
such  rises  as  are  usual,  ordinary,  and  reasonably  to  be  expected,  but  not  to 
include  such  stages  or  levels  in  extraordinary  freshets  as  could  not  reasonably 
be  anticipated  at  particular  periods  of  the  year.6  Unusual  freshets  occurring 
once  in  several  years  must  be  provided  against.7 

The  fact  that  water  is  set  back,  it  seems,  is  not  determined  arbitrarily  by 
instrumental  measurements,  such  as  leveling.  If  the  actual  facts  show  a 
turning  back  of  the  water  upon  an  adjoining  owner's  land,  the  owner  of  the 
dam  may  be  liable,8  even  though  field  operations  of  leveling  show  more  fall 
on  his  land  than  he  has  height  at  his  dam. 9 

When  land  has  been  overflowing  above  a  bridge,  and  the  evidence  showed 
that  below  the  bridge  the  water  was  caused  to  rise  several  feet  by  a  dam,  and 
that  above  the  bridge  the  water  was  two  feet  higher  than  below  it,  it  was  error 
to  rule  that  no  recovery  could  be  had  on  account  of  the  dam,  because  the  water 

1Home    Elec.    L.   &    P.    Co.    v.    Globe  Ames  v.  Cannon  R.   Mfg.  Co.,  27  Minn. 

Tissue-Paper  Co.  (Ind.  Sup.),  45  N.   E.  245;  Richardson  v.  Kier,  37  Cal.  263.   As 

Rep.  1108.  to    what    is    the    ordinary    stage    of   the 

2  Wooden  v.   Mt.    Pleasant   L.  &  Mfg.  water,  and  its  relation  to  the  freshet  stage 

Co.  (Mich.),  64  N.  W.  Rep.  329.  of  the  stream,  see  McCoy  v.   Danley,  20 

3Townesz>.  Augusta  (S.  C.),  23  S.   E.  Pa.  St.    85;    Monongahela    Nav.    Co.    v. 

Rep.  984.     See  Matthews  v.  Metcalf  (la.),  Coon,  6  Pa.  St.  379. 

66  N.  W.  Rep.  189.  6  Ames    v.   Cannon    R.    Mfg.    Co.,    27 

4  Cooper  v.  Hall,  5  Ohio  321;  Irwin  v.  Minn.  245. 

Janesville.  Cot.    Mills   (Wis.),  60  N.  W.  7Gray  v.  Harris,  107  Mass.  492. 

Rep.   786.  'Browne.  Bush,  45  Pa.  St.  61. 

5Casebeer  v.   Mowry,    55   Pa.    St.   419;  9  Brown  v.   Bush,  45    Pa.   St.  61.     But 

Bell    v.    McCHntock   (Pa.),  9  Watts   119;  see   Newland    v.    Hudson   R.    Co.   (Sup.), 

State  v.  Ousatonic  W.  Co.,  51  Conn.  137;  16  N.  Y.   Supp.   654,    and  Clement  Mfg. 

Coloneyz/.  Farrow  (Sup.),  36  N.  Y.  Supp.  Co.  v.  Wood  (Mass.),  38  N.   E.   Rep.  444, 

164;  Allen   v.    Chippewa    Falls,    52  Wis.  and   Esson   v*   Wattier    (Oreg.),   34  Pac. 

430;  Bristol  Hy.   Co.  v.   Boyer,  67  Ind.  Rep.  756. 
236;    Dorman   v.    Ames,    12    Minn.    451; 


§85.  OPERATIONS   PRELIMINARY    TO    CONSTRUCTION.  ?O 

was  higher  above  than  below  the  bridge,  since,  but  for  the  dam,  the  water 
below  the  bridge  would  have  passed  off  and  increased  the  flow  under  it,  thus 
relieving  the  backwater  above. 1  If  the  banks  of  the  stream  were  high  and 
contracted  below  the  dam,  so  that  the  water  was  as  high  below  as  above  the 
dam,  such  a  condition  of  things  might  be  shown. 2 

A  landowner  may  recover  for  injury  to  his  land  resulting  proximately 
from  the  maintenance  of  a  dam  on  his  neighbor's  premises,  though  such 
injury  was  aggravated  by  other  causes  not  within  defendant's  control;3  but 
not,  it  seems,  if  the  same  injuries  would  have  resulted  without  the  negligent 
act  of  providing  insufficient  outlet  for  the  waters.4  The  negligence  of  the 
defendant  must  have  caused  the  injury. 

If  a  dam  cause  an  ice-jam  which  dams  up  the  waters  of  a  stream,  it  seems 
that  the  company  owning  the  dam  may  be  held  responsible  for  injuries 
resulting.5  The  opinions  of  witnesses  as  to  the  cause  of  the  ice-jam  are  held 
inadmissible,  even  though  they  live  in  the  neighborhood  and  knew  the  condi- 
tion of  the  river  before  the  boom  was  built.5 

If  a  river-boom  cause  the  overflow  of  land  and  crops,  the  owners  may  be 
required  to  pay  damages.6  That  a  defective  boom  was  remedied  as  soon  as 
possible,  and  that  the  conditions  as  to  high  water,  floating  ice,  and  the 
number  of  logs  in  the  boom  were  unusual,  does  not  relieve  the  owner  from 
liability  to  a  riparian  owner  for  damage  occasioned  by  water  being  backed 
upon  his  land.7  Evidence  that  a  logging  boom  was  so  constructed  as  to 
require  "protection,"  and  a  ."cushion"  of  logs  to  "strengthen"  it,  is 
sufficient  to  sustain  a  finding  of  a  defect  in  the  boom.8  Where  a  riparian 
owner  seeks  to  recover  for  injuries  to  his  land  from  an  overflow  alleged  to 
have  been  caused  by  a  dam  constructed  by  a  booming  company,  the  burden 
is  on  him  to  show  that  the  waters  which  caused  the  injury  were  raised  by  the 
dam  above  ordinary  high-water  mark  and  out  of  the  well-defined  channels  of 
the  stream.9 

The  liability  depends  upon  whether  there  was  negligence.  When  logs 
form  a  gorge  and  are  suddenly  released,  causing  the  stream  to  overflow,  the 
plaintiff,  in  order  to  recover  for  the  damage  done,  must  show  a  want,  of 
ordinary  care.10 

A  mill-owner  has  a  cause  of  action  against  one  who,  by  piling  logs  on  the 

1  Payne   v.    Kansas   City  R.    Co     (Mo.  6  McKenzie    v.     Miss.     Boom    Co.,    29 
Sup.),  20  S.  W.  Rep.  322.     But  see  Hodge       Minn.  288. 

v.   Lehigh  Val.   R.   Co.  (C.  C.),   56  Fed.  7  Doucette  v.  Little  Falls  Imp.  &  Nav. 

Rep.  195.  Co.  (Minn.),  73  N.  W.   Rep.  847  [1898]; 

2  Rucker  v.   Athens  Mfg.   Co.,  54  Ga.  Rogers  v.  Coal  R.  B.  &  D.  Co.  (W.  Va.), 
84.  23  S.  E.  Rep.  919. 

'Cline  v.  Baker  (N.  C.),  24  S.  E.  Rep.  8  Doucette  v.  Little  Falls  Imp.  &  Nav. 

516.  Co.,  supra. 

*  James  v.  Kansas  City,  etc.,  R.  Co.,  9Gniadck  v.  Northwestern  Imp.  & 

69  Mo.  App.  431.  Boom  Co.,  75  N.  W.  Rep.  894. 

5  Shaw  v.  Susq.  Boom  Co.,  125  Pa.  St.  10  Hopkins  v.  Butte  &  M.  Com.  Co. 

324.  (Mont.),  33  Pac.  Rep.  817. 


71  DETENTION   OF   WATERS   OF  STREAMS.  §  8/. 

ice  above  the  mill  when  the  stream  is  frozen  over,  interrupts  the  natural  flow 
of  the  stream  to  the  mill.1 

Actual  possession  by  one  who  is  not  the  owner  of  the  fee  is  sufficient  to 
give  him  a  right  to  damages.2'  The  fact  that  the  watercourse  is  not  a 
permanent  stream,  or  that  the  party  doing  the  act  is  a  city,  makes  no  differ- 
ence. The  liability  for  flooding  the  lands  of  another  remains.3 

86.  Injunction  to  Prevent  the  Detention  or  Obstruction  of  Waters. — 
Damming  of  waters  of  a  stream  so  that  they  set  back  and  interfere  with  the 
operation  of  a  mill 4  may  be  enjoined  by  injunction.     The  raising  of  the  level  of 
the  water  must  not  be  so  as  to  interfere  with  the  drainage  of  another's  land.5 
The  detention  and  collection  of  water  by  a  dam  which  becomes  stagnant  and 
injurious  to  the  health  of  the  community  will  be  prohibited  by  injunction.6 
If  the  mill  be  a  great  public  convenience  and  it  is  proposed  to  rebuild  the 
dam   so  that  the   owner's  land  will  be   flooded  and  the  health  of  his  family 
injured,  an  injunction  may  be  denied  and  the  plaintiff  required  to  bring  action 
for  his  damages.7  *    In  such  cases  it  has  been  held  that  the  expense  of  sickness 
and  loss  of  time  could  be  recovered.  8f 

One  may  in  the  same  action  seek  damages  for  injury  to  water  rights  and 
injunction.9 

Where  plaintiff's  land  was  overflowed  during  the  winter  freshets,  his  appli- 
cation for  an  injunction  to  restrain  the  building  of  a  dam  on  the  stream 
should  be  denied,  since  it  cannot  be  inferred  that  the  damage  from  overflow 
would  be  augmented  by  its  existence.10 

87.  Liability  for  Defective  Construction  of  Dam  or  Barrier. — To  avoid 
liability,  the  owner  must  have  built  his  dam  so  as  to  be  free  from  defects,  or 
as  free  as  reasonable  care,  forethought,  and  judgment  could  devise.      If  built 
with  that  reasonable  care  which  prudent  men  would  use,  and  no  negligence 
is  shown  in  its  care  or  management,  the  owner  will  not  be  liable  for  damages 
caused  by  its  breaking.11     A  dam  must  be  able  to  resist  not  merely  ordinary 

1  Wooden  v.    Mt.    Pleasant   L.  &  Mfg.       Rep.  490;  28   Amer.  &  Eng.   Ency.   Law 
Co.  (Mich.),  64  N.  W.  Rep.  329.  960,  and  cases  cited. 

2  Allen    v.   McCorkle  (Tenn.).  3  Head           7  Daugherty  v.  Warren,  85  N.  C.  136, 
181.  8  Mills  v.   Hall  (N.  Y.),  9  Wend.  315- 

3  Rose  v.  St.  Charles,  49  Mo.  509.  28  Amer.  &  Eng.   Ency.   Law  960,  many 
4McIntosh  v.  Rankin  (Mo.  Sup.),  35  S.       cases  cited. 

W.    Rep.    995;    Newland    v.    Hudson   R.  9Watterson  v.  Saldunbehere  (Cal.)i  3S 

Co.  (Sup.),  16  N.  Y.  Supp.  654;  Rothery  Pac.  Rep.  432. 

v.   N.   Y.    Rubber  Co.   (N.   Y.),  24    Hun  10  Esson  v.  Wattier  (Or.),  34  Pac.  Rep. 

172;  Matthews  v.  Metcalf  (Iowa),  66  N.  756. 

W.    Rep.    189;  28   Amer.    &    Eng.    Ency.  ll  New  York  v.  Bailey  (N.  Y.),  2  Den. 

Law  960.  433.    Darling    v.  Thompson    (Mich.),    65. 

5 Sims   v.   Smith,   7  Cal.    149;  Treat  v.  N.   W.    Rep.   754;  Sterling    Hyd.    Co.   v. 

Bates,  27  Mich.  390;  Bassett  v.  Salisbury  Williams,  66    111.   393;  Rich    v.    Keshena 

-Mfg.  Co.,  43  N.  H.  569.  Imp.  Co.,  56  Wis.  287;  Hoffman  v.  Tuo- 

6  Montezuma    v.    Minor,    73    Ga.    484;  lumne  Co.  W.   Co.,  10  Cal.  413;  Wolf  v~ 

Thomas  v.   Calhoun,   58  Miss.  80;   Mayo  St.  Louis  I.  W.  Co.,  10  Cal.  541;  Everett 

v.    Turner    (Va.),   I  Munf.  405;  Masonic  v.  Hyd.  F.  T.  Co.,  23  Cal.  225,  Arave  v. 

Temp.   Assn.    v.   Banks    (Va.),   27    S.   E.  Idaho  C.  Co.  (Idaho),  46  Pac.  Rep.  1024. 

*  See  Sees.  209,  219,  infra.  \  See  Sec.  223,  infra. 


§88.  OPERATIONS  PRELIMINARY    TO    CONSTRUCTION.  / '2 

freshets,  but  such  extraordinary  floods  as  might  reasonably  be  expected.1 
The  fact  that  a  flood  which  overflowed  a  person's  land  was  higher  than  had 
ever  before  been  known  will  not  relieve  the  owner  thereof  from  liability,  if 
the  river  was  one  subject  to  sudden  rises  and  increased  volume.2 

Where  a  dam  was  washed  away  by  a  phenomenal  flood  that  no  one  could 
expect,  the  owner  was  held  not  liable.  Where  a  dam  was  washed  away  which 
had  no  waste-weir  or  flagging  over  the  dirt  filling  between  the  walls  of  the 
dam,  and  experts  testified  that  it  was  not  safe  to  build  a  dam  without  a  waste- 
weir,  and  another  witness  testified  that  he  would  not  build  such  a  dam  with- 
out a  waste-weir,  the  question  of  negligence  in  its  construction  is  properly  for 
the  jury.3 

88.  Maintenance  and  Repair  of  Dam. — The  owner  of  a  dam  must  use 
proper  care  in  repairing  and  protecting  it.4  A  purchaser  of  an  unsafe  dam 
who  fails  to  make  it  safe,  and  to  so  maintain  it  as  not  unnecessarily  to 
endanger  life  or  property,  is  liable  for  injuries  caused  thereby.5 

One  to  whom  a  reservoir  is  leased  in  consideration  of  his  completing  its 
construction  and  maintaining  it  is  an  "owner"  within  the  meaning  of  an 
act  providing  that  the  owners  of  reservoirs  shall  be  liable  for  floods  from  the 
breaking  of  the  embankments.6 

When  a  state  has  granted  a  public  work  to  a  corporation,  the  grantee 
corporation  is  discharged  from  those  duties  to  the  public  growing  out  of  the 
work  which  the  state  had  provided  before  the  grant  was  made,  unless  there 
are  express  words  in  the  grant  which  impose  such  duties  upon  the  corpora- 
tion.7 

Where  one  owns  a  dam  and  pond,  and  another  a  right  to  draw  water 
therefrom,  there  being  no  contract  to  maintain  the  dam,  either  may  abandon 
the  power  and  free  himself  from  its  maintenance ;  but  either  has  the  right  to 
maintain  the  power,  and  to  have  the  other,  till  such  abandonment,  contribute 
his  share  of  the  expense.  One  such  owner  cannot  recover  from  the  other  for 
damages  caused  by  unnecessary  delay  in  repairing  the  dam,  since  he  has  the 
right  to  prevent  such  damage  by  making  the  repairs  himself  and  compelling 
contribution.8  A  deed  granting  merely  the  right  of  drawing  water  from  a 
dam  imposes  no  obligation  upon  the  grantor  or  his  assignee  to  rebuild  the 
dam  when  swept  away.9 

1  New  York  v.  Bailey  (N.  Y.),  2  Den.       Lumber  Co.   (N.  H.),  39  All.   Rep.    1019 
433;  Lapham  v.  Curtis,  5  Vt.  379.  [1897].     See   Chicago    R.   I.  &    P.  R.  v. 

2  Mundy  v.  N.  Y.,  etc..  R.  Co.  (N.  Y.),       Moffit,  75  HI.  524  [1874]. 

75  Hun  479.  6  Larimer  County  Ditch  Co.  v.  Zimmer- 

3  Cottrell  v.  Marshall  Infirmary  (Sup.),  man   (Colo.    App.)<   34   Pac.    Rep.    mi; 
24  N.  Y.  Supp.  381.  Meyer  v.  Harris  (N.  J.),  38  Atl.  Rep.  690 

4  Weidekind  v..  Tuolumne  Co.  W.  Co.  [1897]. 

(Cal.),  12   Pac.  Rep.  387  [1887];  Darling  '7  Erie    v.   Erie    Canal    Co.,  59    Pa.  St. 

v.  Thompson  (Mich.),  65  N.  W.  Rep.  754;  174. 

Arave  v.   Idaho  C.   Co.  (Idaho),  46  Pac.  8  Webb  v.  Laird  (Vt.),  7  Atl.  Rep.  465 

Rep.  1024;   Rigdon  v.  Temple  W.-w.  Co.  [1887]. 

(Tex.),  32  S.  W.  Rep.  828.  9  Trudeau  v.   Field  (Vt.),  38  Atl.  Rep. 

5  Town  of  Monroe  v.  Connecticut  River  162  [1897]. 


73  DETENTION  OF    WATERS  OF  STREAMS*..  ^  ,,    ,    §  90. 

If  a  dam  became  choked  or  obstructed  with  ice,  the  proprietor  may  be 
held  liable  for  damages  occasioned  by  such  obstruction. 1 

89.  Liability  for  Injuries  to  Dam. — Where  a  person  has  maintained  a 
dam  for  over  fifty  years  on  a  navigable  river  used  for  the  floatage  of  logs, 
persons  injuring  the  dam,  by  reason  of  their  negligence  in  handling  the  logs, 
are  liable  to  the  owner  of  the  dam  for  the  injuries. a     The  mill-owner  cannot 
recover  for  damages  to  his  mill  property  caused  by  logs  floated  over  his  dam 
without  negligence,  where  the  injuries  could  have  been  avoided  by  his  build- 
ing an  apron  on  the  dam.8 

When  one  has  maintained  a  dam  at  a  certain  height,4  or  has  flowed  certain 
lands  without  interruption,5  or  has  diverted  certain  waters  by  an  aqueduct 
over  defendant's  lands,6  for  a  period  of  years  equal  to  the  statutory  limit,  he 
will  have  a  good  defense  to  a  suit  to  prevent  a  continuance  of  such  acts  or 
for  damages  resulting  therefrom. 

90.  Injuries  ^Due  to  Floods  that  might  have  been  Expected,  Foreseen, 
and  Guarded  Against. — The  flood  which  caused  the  damage  must  have  been 
an  extraordinary  one  which   could  not  reasonably  have  been  expected  and 
foreseen,    or    it    must   have   been    the   result    of   unforeseen    causes,   or  the 
proprietor  of  the  dam  causing  it  will  be  liable.7 

An  extraordinary  rainfall  or  an  unusual  spring  freshet  which  might  be 
expected  to  occur  once  in  a  series  of  years,  and  which  persons  of  ordinary 
prudence  and  discretion  would  not  think  of  guarding  against,  was  held  not 
such  a  flood  as  a  city  was  required  to  guard  against.8  An  overflow  caused 
by  the  spontaneous  growth  of  a  particular  kind  of  grass  in  a  dam  was  held 
not  to  make  the  dam-owner  liable  for  injuries  resulting.9  The  flood  or 
freshet  need  not  necessarily  have  been  unprecedented;  as  where  three  floods 
come  in  rapid  succession.  The  question  is  whether  the  flood  which  caused 
the  damage  was  extraordinary  and  such  as  would  not  reasonably  have  been 
expected  or  anticipated.10  This  question  as  to  whether  the  flood  or  freshet 
was  of  such  unusual  or  extraordinary  character  as  to  excuse  the  dam-owner 
is  for  the  jury  under  proper  instruction.11 

If  the  obstruction  of  a  stream  by  a  dam  is  unlawful  in  the  first  instance, 
the  owner  will  be  liable  in  damages  without  regard  to  whether  it  is  reason- 
able or  whether  provisions  were  made  against  freshets  and  floods. 12 

1  Cowles    v.    Kidder,    24     N.    H.    364;  38  Wis.  21;   Sabine  v.  Johnson,  35  Wis. 
Weaver  v.  Miss.  Boom  Co.,  28  Minn.  534.  185;   Proctor  v.  Jennings,  6  Nev.  83. 

2  James  v.  Carter  (Ky.),  29  S.  W.  Rep.  8  Alexander  v.  Milwaukee,  16  Wis.  247. 
19.  9  Knoll  v.  Light,  76  Pa.  St.  268. 

'3  Huff  v.  Kentucky  Lumber  Co.  (Ky.),  10  Pittsburg,  etc.,  R.   Co.  v.  Gilleland, 

45  S.  W.  Rep.  84  [1898].  56  Pa.  St.  445.     And  see  People  v.  Utica 

4  Ballard  v.  Struckman  (111.),  14  N.  E.       Cement  Co.,  22  111.  App.  159. 

Rep.  682  [1888].      See  A.  P.  Cook  Co.  v.  "Gray  v.   Harris,   107  Mass.  492;  Bor- 

Beard  (Mich.),  65  N.  W.  Rep.  518.  chardt  v.  Wausaw   B.  Co.,    54    Wis.   107; 

5  Gleason  v.  Tuttle,  46  Me.  288  [1858].  Higgins  v.  New  York,  etc.,  R.  Co.  (Sup.), 

6  Emerson    v.    Bergin   (Cal.),    18    Pac.  29  N.  Y.  Supp.  563. 

Rep.  264  [1888].  12  Hartshorn  v.  Chaddock  (Super.  Ct.), 

7  China  v.  Southwick,  12  Me.  238;  Pix-       40  N.  Y.  St.  Rep.  953. 
ley  v.  Clark,  35  N.  Y.  520;  Cobb  v.  Smith, 


CHAPTER   VIII. 

DIVERSION   AND   OBSTRUCTION    OF   WATERS.     STREAMS. 

101.  Diversion   of  Watercourses. — A   riparian    owner   may  change   the 
course  of  a  stream  flowing  through  his  land  if  he  returns  it  to  the  original 
channel  at  the  point  where  it  leaves  his  land,  ancl  does  not  unreasonably 
diminish  the  flow  of  the.  stream. l     A  stream  may  be  diverted  for  the  purpose 
of  irrigating  the  lands  of  the  owner  if  there  be  no  excessive  diminution  of  the 
waters.2     The  diversion  of  a  moderate  quantity  of  water  for  the  use  of  steam- 
engines  may  be  made  without  liability  to  the  lower  riparian  owner  unless  he 
has  suffered  perceptible  damage.3 

One  who  has  acquired  a  right  to  divert  the  waters  of  a  stream  may 
change  the  point  of  diversion  and  the  place  of  use  without  losing  his  right  of 
priority,  when  the  rights  of  others  are  not  injuriously  affected.4  To  divert 
the  waters  of  a  stream  into  one's  own  land  without  license,  grant,  or  lawful 
right  is  a  nuisance.5  The  construction  of  a  sewer  in  the  bed  of  a  stream  and 
the  discharge  of  the  stream  through  the  sewer  has  been  held  a  taking  of  the 
water  of  the  stream,  even  though  the  water  is  returned  to  the  natural 
channel.6 

102.  The  Quantity  Must  Not  be   Materially  Diminished. — Water  may 
not  be  diverted  so  as  to  lessen  the  supply  to  other  riparian  owners  to  which 
they  are  entitled.7 

One  who  digs  a  ditch  which  diverts  water  from  a  stream,  to  the  damage 
of  the  owner  of  a  pond  fed  by  such  stream,  is  liable  for  the  loss  occasioned 
thereby  even  after  he  has  ceased  to  work  on  the  ditch,  since  the  effect  of  the 
wrongful  act  is  continuous.8  The  diversion  of  water  from  a  creek  by  a  rail- 

1  Garwood   v.   N.   Y.  Cent.   R.   Co.,  83  53;    Porter   v.    Durham,    74    N.    C.    767; 
N.  Y.  400;   Pettibone  v.  Smith,   37  Mich.  Williams  v.   Fulmer  (Pa.   Sup.),    25  Atl. 
579;  Creighton  v.  Kaweah  Canal  Co.,  67  Rep.  103;  Learned  v.  Castle,  78  Cal.  454; 
Cal.  221;  Moore  v.  Clear  Lake  W.  (Cal.),  Hocutt  v.   Wilmington  &  W.  R.  Co.  (N. 
5  Pac.  Rep.  494  [1885];  Earl  of  S.  v.  Gt.  C.),  32  S.  E.  Rep.  681  [1899]. 

N.  R.  Co.,  L.  R.  10  Ch.  Div.  707.  6  Worcester  Gas  Lt.  Co.  v.  Co.  Comm'rs, 

2  Embry  v.  Owen,  6  Exch.  353.  138    Mass.    289    [1885!.     See    Schoen    v. 

3  Elliott  v.  Fitchburg  R.    Co.  (Mass.),        Kansas  City,  65  Mo.  App.  134. 

10  Cush.  191.  728  Amer.  &  Eng.  Ency.  Law  979,  and 

4 Fuller  v.  Swan  R.  P.  Min.  Co.  (Colo.),  cases  cited. 

19  Pac.  Rep.  836  [1889].  8  Covert  v.  Valentine  (Sup.),  21  N.  Y. 

5Vernum  v.  Wheeler,  35  Hun  (N.  Y.)  Supp.  219. 

74 


75  DIVERSION  AND    OBSTRUCTION  OF   WATERS.  §  104. 

road  company  and  its  conveyance  in'pipes  to  reservoirs  for  the  supply  of  their 
locomotives,  and  in  such  a  quantity  as  to  perceptibly  reduce  the  volume  of 
the  stream  and  diminish  the  grinding  power  of  a  mill,  will  render  the  railroad 
company  liable  to  damages  and  to  an  injunction  to  stop  such  diversion.1  A 
diversion  that  is  not  continuous,  but  for  certain  periods,  may  be  restrained  if 
it  be  unlawful.2  .If  a  person  conduct  as  much  water  to  the  stream  as  he  has 
taken  therefrom,  it  seems  that  he  will  not  be  restrained  from  so  doing.3  If 
there  are  two  mill-owners  upon  opposite  sides  of  a  stream,  and  one  has  the 
exclusive  right  to  the  whole  of  the  water,  it  seems  that  when  there  is  not 
enough  for  both  mills  he  has  not  a  legal  right  to  erect  a  permanent  dam  to 
turn  all  the  water  to  his  own  mill,  but  must  rely  on  his  legal  remedies  if  his 
rights  are  infringed  by  the  opposite  mill -owner.4 

103.  Obstruction   of  Outlet  to  Pond. — If  the  owner  of  the  outlet  of  a 
pond  or  lake  has  allowed  it  to  become  obstructed  so  as  to  raise  the  water  on 
the  land  of  another,  the  latter  may  not  cut  a  drain  to  discharge  such  water, 
but  should  remove  the' obstruction  to  the  original  outlet.5     If,  however,  a 
diversion  has  resulted  from  natural  causes,  a  lower  riparian  owner  has  no  right 
to  go  upon  the  land  of  an  upper  proprietor  to  restore  a  stream  to  its  original 
channel  independent  of  a  contract  or  without  a  license.6     A  ditch  may  not 
be  dug  to  drain  away  waters  of  a  lake,  in  times  of  high  water,  to  the  injury 
of  the  owner  of  the  water-power  at  the  natural  outlet  of  the  lake.7  * 

104.  Diversion  Not  Excused  by  Fact  that  Sufficient  Water  Remains. — It 
is  not  necessary  that  the  diversion  should  cause  actual  injury  to  the  plaintiff. 
It  is  an  infringement  of  his  right,  and  damages  may  be  recovered  because  of 
acts  of  the  defendant,    for  he  could  after  long  user  furnish  evidence  which 
would  destroy  the  plaintiff's  rights.8     A  wrongful  diversion  will  be  restrained 
even  though  sufficient  water  is  left  after  the  use  for  all  purposes  to  which  the 
lower  riparian  owner  puts  the  stream  at  the  time  of  the  wrongful  acts.9     Any 
diversion  of  waters  to  which  the  party  making  the  diversion  is  not  justly  and 
lawfully  entitled  will    be  restrained.      If  the   diversion  be  wrongful,   it  is  a 
continuing  injury  to  other  persons,  and  successive  actions  may  be  brought  in 
the  courts  as  long  as  the  diversion  is  continued.10 

^arwood  v.  N.  Y.  Cent.  R.  Co.,  83  N.       Rothery  (N.  Y.  App.),  30  N.  E.  Rep.  841; 

Y.  400.  Southern  M.  Co.  v.  Darnell  (Ga.),  21  S. 

2Carron  v.  Wood,  10  Mont.  500.  E.  Rep.  531;  Chatfield  v.  Wilson,  27  Vt. 

3  Wilcox  v.  Hausch,  64  Cal.  461.  670  [1854]. 

4  Curtis  v.  Jackson,  13  Mass.  507.  9Gilzinger  v.  Saugerties  W.  Co.  (Sup.), 
5Mohr  v.  Gault,  10  Wis.  513.  49  N.  Y.  St.  Rep.  308;  Miller  v.  Windsor 
6Wholey   v.    Caldwell  (Cal.),   41  Pac.       W.   Co.   (Pa.   Sup.),    23  Atl.    Rep.    ^32; 

Rep.  31.  semble,    Gallagher   v.    Kingston    W.    Co. 

7  Bennett  v.  Murtaugh,  20  Minn.  151.  (N.  Y.),  25  App.   Div.  82.     But  see  Pine 
See    Underground   Waters,    27    Amer.  &  v.  New  York  (C.  C.),  76  Fed.  Rep.  418. 
Eng.  Ency.  Law  423.  10  Bare  v.  Hoffman.  79  Pa.  St.  71;  Gal- 

8  28  Amer.  &  Eng.  Ency.  Law  981;  Rig-  lagher  v.   Kingston   W.  Co,  (N.   Y.),   25 
ney  v.  Tacoma  Lt.  &  W.  Co.  (Wash.).  38  App.   Div.    82    [1898].     But   see    Pine  v. 
Pac.    Rep.    147;    New   York    R.    Co.    v.  New  York  (C.  C.),  76  Fed.  Rep.  418. 

*  See  Sees. '251-280,  infra. 


§105^          OPERATIONS   PRELIMINARY    7'O    CONSTRUCTION.  76 

In  arid  districts  where  irrigation  laws  have  been  passed,  under  the  principles 
of  prior  appropriation  the  right  to  water  flowing  in  public  streams  may  be 
acquired  by  actual  appropriation  for  a  beneficial  use  to  an  extent  necessary 
for  the  purposes  for  which  the  appropriation  is  made,  when  reasonably  used 
with  reference  to  the  general  condition  of  the  country  and  the  necessities  of 
the  community;  and  the  surplus  may  be  appropriated,  subject  to  the  rights 
of  prior  appropriators. l  * 

105.  Diversion  of  Stream  into  New  Channel. — Within  the  limits  of  one's 
own  land  the  course  of  the  stream  may  be  changed  provided  it  be  restored 
practically  undiminished  to  the  original  channel  before  leaving  his  premises.2 
The  failure  to  restore  the  waters  to  their  original  channel  constitutes  an 
unlawful  diversion.3  It  is  no  excuse  that  the  unauthorized  interference  of  a 
stranger  rendered  the  means  provided  for  restoring  the  'water  unavailable, 
though  otherwise  adequate.4  A  person  entitled  to  the  use  of  water  may 
change  the  place  of  diversion,  the  place  where  it  is  used,  or  the  use  to  which 
it  is  applied,  if  others  are  not  injured  by  such  change5  and  no  more  than  he 
is  entitled  to  is  diverted.6 

One  who  makes  a  new  channel  for  a  stream  impliedly  authorizes  the 
public  to  use  the  new  channel  as  they  had  previously  used  the  original 
channel.  This  is  so  if  he  has  obstructed  the  old  channel ;  but  if  the  obstruc- 
tion of  the  old  channel  has  arisen  not  from  the  making  of  the  new  one,  but 
from  the  consequent  stoppage  of  the  flow  of  the  stream  at  a  distant  point,  the 
public  acquires  no  right  to  use  the  new  channel.7  In  making  a  new  channel 
for  a  stream,  reasonable  care  and  foresight  must  be  exercised.  If  this  has 
been  done,  there  will  be  no  liabilities  for  injuries  resulting  from  unforeseen 
causes.8 

In  the  matter  of  obstruction  the  new  channel  will  be  governed  by  the 
same  rules  as  a  natural  watercourse. &  Care  must  be  taken  to  make  the  new 
channel  adequate  to  carry  off  the  waters, 10  even  though  the  change  is  made 
under  power  conferred  by  charter  of  the  city.11  At  least  it  must  be  equally 
adequate  to  carry  off  the  flow  at  all  times  and  in  all  cases  that  may  be 

1  Union  Mill  &  Min.   Co.  v.  Dangberg  7  Dwinel  v.  Barnard,  28  Me.  554. 

(C.  C.  D.  Nev.),  81  Fed.   Rep.   73,  citing  8  Hargraves  v.   Kimberly,   26  W.  Va. 

many  cases.  787;  Brown  v.  Best,  I  Wils.  174. 

2  Mo.  Pac.   Ry.  Co.  v.   Keys  (Kan.),  40  9  Mo.    Pac.    Ry.    Co.    v.    Keys    (Kan. 
Pac.  Rep.  275;  Gould  v.  Eaton  (Cal.),  49  Supp.),    40    Pac.     Rep.     275.       And    see 
Pac.  Rep.   577;  28  Amer.   &  Eng.   Ency.  Sweeney  v.  Mont.  Cent.  Ry.  Co.  (Mont.), 
Law  982.  47  Pac.  Rep.  791. 

3  Woodworth  v.  Genesee  P.  Co.  (N.  Y.),  10  Tucker   v.    Salem    Mills   (Oreg.),  16 
18  App.  Div.  510.  Pac.  Rep.  426  [1888]. 

4  Stein  v.  Burden,  29  Ala.  127.  n  Barus  v.  Hannibal,  71  Mo.  449;  Imler 

5  Ramelli  v.  Irish  (Cal.),  31   Pac.  Rep.  v.  Springfield,  55  Mo.  119;  Wigmann  v. 
41-  Jefferson,  61  Mo.   55;  Carl  v.  W.   Aber- 

6  Smith  v.  Corbit  (Cal.),  48  Pac.  Rep.  deen  Ld.  &   Imp.    Co.   (Wash.),  43   Pac. 
725.     But  see  Hague    v.  Nephi    Irr.   Co.  Rep.  890. 

(Utah),  52  Pac.  Rep.  765. 

*  Set  Sees.  71-80,  supra. 


77  DIVERSION  AND    OBSTRUCTION   OF   WATERS.  §  107. 

reasonably  anticipated.     The  person  diverting  the  stream  is  liable  for  injuries, 
caused  by  any  defects  in  regard  to  these  requirements.1 

A  landowner  is  not  entitled  to  recover  damages  from  overflow,  under  an. 
allegation  that  a  canal  was  too  small  to  carry  off  the  waters  accumulated  "  in 
time  of  heavy  rains  and  freshets,"  where  it  is  not  shown  that  the  former  bed 
of  the  river  was  adequate  for  that  purpose.2 

The  owner  of  a  piece  of  land  through  which  a  stream  of  water  runs  may 
change  the  course  ot  the  stream  on  his  own  land  to  any  extent,  if  he  does  not 
thereby  diminish,  in  any  material  degree,  the  beneficial  use  of  the  stream  to 
other  proprietors  either  above  or  below.  Where  such  diversion  affects  those 
above  or  below  unfavorably,  it  requires  fifteen  years  (in  Vermont)  to  give  the 
right  to  continue  the  stream  in  the  new  channel.  If  the  diversion  affects- 
other  proprietors  favorably,  and  the  party  on  whose  land  the  diversion  is 
made  acquiesces  in  the  stream  running  in  the  new  channel  for  so  long  a  time 
that  new  rights  may  be  presumed  to  have  accrued,  or  have  in  fact  accrued,  in 
faith  of  the  new  state  of  the  stream,  the  party  is  bound  by  such  acquiescence, 
and  cannot  return  the  stream  to  its  former  channel.3  * 

Evidence  of  diversions  by  persons  other  than  defendant  is  inadmissible,  it 
not  appearing  whether  such  diversions  were  lawful  or  with  plaintiff's  consent.4 

106.  Excavating  and  Deepening  the  Channel  of  a  Stream, — A  riparian 
owner  may  excavate  the  bed  of  a  stream,  although  he  thereby  increases  the 
quantity  of  water.     This  is  often  done  to  increase  the  flow  of  springs  which 
are  the  sources  of  creeks.5     One  must  have  more  than  a  prescriptive  right  to 
the  waters,  to  be  entitled  to  so  excavate.6    Care  must  be  taken  not  to  injure  the 
property  of  other  riparian  owners,  nor  their  rights  in  the  stream.7     One  may 
not  change  the  natural  course  of  a  stream  to  protect  his  meadow,  where  such 
change  will  so  increase  the  current  of  the  stream  as  to  damage  the  mill-dam 
of  the  owner  of  the  lower  land  by  washing  the  banks  and  filling  the  dam  with 
sediment.7     To  protect  one's  own  land,  it  has  been  held  that  one  might,  as 
against  the  proprietors  on  the  opposite  side  of  the  river,  change  the  channel 
and   mouth   of  the  creek  upon  his  own  land,   if  in  doing  so   he  exercised 
reasonable  care  and  caution  not  to  injure  others.     This  could  not  be  done  if 
it  increased  the  danger  of  overflow  on  the  opposite  side  of  the  stream.8 

107.  New  Channel  Fixed  by  Prescription. — If  the  water  has  flowed  in  a 
new  channel  for  the  period  of  twenty-one  years,  i.e.,  for  the  period  of  limita- 
tions, it  cannot  be  diverted  and  returned  to  its  old  course  to  the  injury  of 
those  who  have  acquired  prescriptive  rights  in  the  stream.9     Where  water  has. 

1  Fletcher  v.  Smith,  L.  R.  7  Exch.  305.  6  Colman  v.  State  (N.  Y.  App.),  31  N. 

2  Powers  v.  St.  Louis  Ry.  Co.,  71  Mo.       E.  Rep.  902. 


App.  540  [1897].  7  Kay  v-  Kirk-  76  Md.  41,  24  All.  Rep. 

3  Ford  v.  Whitlock,  27  Vt.  265  [1855]-         326. 
Heliborn  v.  Kings  River  &  Faco  Co.  '        8  Railroad  Co.  v.  Carr,  38  Ohio  St.  448. 


Ford  v.  Whitlock,  27  Vt.  265  [1855]-  326. 

iver  &  Faco  Co.  x 

j  [1888].  9  I 

.),  6 1  Barb.  130.  Rep 

*  See  Sees.  107  and  661-670.  infra. 


(Kans.),  17  Pac.  Rep.  933  [1888].  9  Leidlein  v.  Meyer  (Mich.),  55  N.  W. 

•  Waffle  v.  Porter  (N.Y.),  61  Barb.  130.       Rep.    367;     Mathewson   v.   Hoffman,   77 


§  IO/.  OPERATIONS  PRELIMINARY    TO    CONSTRUCTION.  ?8 

flowed  for  twenty-one  years  from  springs  on  defendant's  land  through  a 
natural  channel  to  plaintiff's  land,  the  former  has  no  right  to  divert  it.1 

No  prescriptive  right  to  the  use  of  the  water  of  a  stream  can  be  acquired 
by  one  riparian  proprietor,  as  against  another,  by  a  use  of  the  water  at  times 
when  such  use  does  not  interfere  with  the  latter's  use  of  the  water,  and  when, 
as  often  as  there  is  interference,  the  latter  has  protested  and  sought  to 
prevent  the  use.2 

Parties  failing  to  connect  themselves  by  title  with  prior  occupants  who 
had  appropriated  the  water  of  a  stream  for  the  cultivation  of  the  land  cannot 
avail  themselves  of  such  prior  appropriation  of  the  water.  Their  own  appro- 
priation of  the  water  must  be  treated  as  the  inception  of  their  rights.2  The 
use  of  the  water  must  have  been  hostile  and  not  under  a  license.3 

The  fact  that  one  who  owns  and  controls  a  dam  and  canal  for  the  purpose 
of  navigation  diverts  an  inconsiderable  amount  of  water  from  the  stream  to 
create  a  water-power  is  not  per  se  notice  of  an  adverse  claim  of  right  to  so 
use  said  water.4  The  acquiescence  of  a  riparian  owner  does  not  give  to  a 
person  diverting  water  to  a  useful  purpose  a  prescriptive  right  therein  against 
the  owner  by  operation  of  the  statute  of  limitations.5  The  right  of  a  riparian 
owner  to  put  to  a  legitimate  use  the  water  of  a  stream  flowing  through  or 
along  his  land  is  not  lost  by  nonuser.5 

A  right  acquired  by  the  state,  through  adverse  user,  to  divert  water  from 
a  river  into  a  stream  flowing  through  plaintiff's  land  gives  the  state  no  title 
by  adverse  possession  to  land  under  the  stream,  and  hence  no  right  to  broaden 
and  deepen  its  bed.6 

If  the  new  channel  was  caused  by  sudden  floods,  and  has  continued  in 
that  course  for  the  full  period  of  prescription,  it  cannot  be  restored  to  its  old 
channel.7  A  mill -owner  may  prevent  the  restoration  of  a  stream  to  its 
original  channel  if  he  has  acquired  by  prescription  the  right  to  discharge  the 
water  from  his  mill  into  an  artificial  channel.8 

If  water  has  been  conducted  to  a  mill-race,  but  has  occasionally  been 
turned  into  its  old  channel  in  order  that  the  race  might  be  cleaned  and 
repaired,  a  recent  purchaser  of  land  cannot  complain  if  the  water  is  turned 
back  into  its  original  channel  permanently.9 

Greg     420;  Woodbury   v.    Short.    17  Vt.  berg  (C.  C.),  81  Fed.  Rep.  73. 

387;   Eshleman  v.   Martic   (Pa.   Sup.),  25  3  Huston    v.    Bybee    (Oreg.),   20    Pac. 

Atl.  Rep.  178;  Tucker  v.  Salem  F.  Mills  Rep.  51  [1889]. 

(Oreg.),  16  Pac.  Rep.  426  [1888].  *  Green    Bay  Canal   Co.    v.    Kaukauna 

1  Adam  v.  Moll,  6  Pa.   Super.  Ct.   380  W.  P.  Co.  (Wis.),  61  N.  W.  Rep.  1121. 
[1898];  Eshleman  v.  Martic  (Pa.  Sup.).  5  Hargrave    v.    Cook    (Cal.),    41     Pac. 
25  Atl.  Rep.  178;  Mastenbrook  v.  Alger  Rep.  18. 

<Mich.),    68   N.  W.    Rep.    213;  Taylor   v.  6Colman  v.  State  (N.  Y.   App.).   31   N. 

Blake  (N.  H.),  10  Atl.  698  [1887] ;  Huston  E.  Rep.  902;  Terre  Haute  &  I.  R.  Co.  v. 

v    Bybee  (Oreg.),  20  Pac.  Rep.  51  [1889];  Zehner  (Ind.  App.),  42  N.  E.  Rep.  756. 

Knights  of  P.  v.  Leadbeter  (Pa.),  39  W.  7  Woodbury  v'.  Short,  17  Vt.  387. 

N.  Cas.  188.  8Delaney  v.  Boston  (Del.),  3  Harr.  489. 

2  Union    Mill   &   Mining    Co    v.   Dang-  9  Peter  v.  Caswell,  38  Ohio  St.  518. 


79  DIVERSION  AND    OBSTRUCTION   OF   WATERS.  §  I IO. 

108.  Riparian  Owners  whose  Rights  are  Not  Affected  Cannot  Complain. 

— One  whose  rights  are  not  in  any  way  affected  by  such  wrongful  diversion 
may  not  complain  of  the  wrongful  act.  The  owner  of  land  upon  another 
stream  into  which  the  stream  diverted  occasionally  empties  has  no  just  cause 
to  complain  unless  he  shows  that  the  quantity  that  would  have  emptied  into* 
his  watercourse  has  been  lessened.1  An  upper  riparian  owner  cannot  com- 
plain about  what  a  neighbor  lower  down  on  the  stream  is  doing  if  it  does  not 
affect  him  injuriously.2  It  is  no  excuse  for  the  diversion  of  the  waters  of  a 
lake  that  the  plaintiff  supplied  water  by  certain  acts,  and  the  defendant  will 
be  supplied  with  sufficient  water  to  furnish  a  more  uniform  supply  for  his 
mill  than  he  had  previously  had  from  the  lake.3 

A  riparian  owner  is  not  estopped  from  maintaining  an  action  against  a 
water  company  for  wrongfully  diverting  water  from  a  stream  because  he  is  a 
water-taker  from  the  company.4 

It  has  been  held  that  if  the  uninterrupted  flow  of  a  stream  would  be 
insufficient  to  afford  one,  having  rights  in  its  waters,  any  beneficial  use  of  it, 
he  is  not  entitled  to  interfere  with  the  use  of  such  waters  by  others.5 

The  owner  of  land  who  has  appropriated  the  waters  of  a  stream  for  irriga- 
tion purposes  cannot  enjoin  the  diversion  of  waters  from  the  stream  by  the- 
owner  of  land  fifteen  miles  above  him,  which  water  cannot  reach  plaintiff's 
land  because  of  the  drying  up  of  the  stream  between  his  land  and  defendant's, 
on  the  ground  that  the  volume  of  water  diverted  might,  in  the  event  of 
an  unusual  flow  of  water,  cause  some  to  flow  to  plaintiff's  land.6 

109.  Mode  of  Diverting  Waters. — It  does  not  matter  by  what  methods 
waters  are  diverted,  whether  by  damming  or  by  erecting  a  bulwark  or  pier 
either  in  a  stream  or  upon  the  banks  of  a  stream.     A  bulkhead  erected  upon 
the  banks   of  a  stream,  in  times  of  flood,  which  has  the  effect  of  diverting 
the  stream  from  its  accustomed  course,  and  causing  an  unusual  overflow  of 
the  lands  of  neighbors,  is  a  nuisance.7 

110.  Diversion  of  Waters  by  Percolation  or  Subterranean  Channels. — 
Any  diversion  of  the  watercourse,  by  whatever  act  or  means,  is  equally  wrong- 
ful whether  it  be  the  diverting  of  the  waters  of  a  stream  or  of  a  spring  which 
is   the   source   of  a  running  stream.8     A  riparian  proprietor  cannot  dam   a 
stream  so  that  the  water  accumulates  in  an  artificial  pond  and  by  percolation 

^reighton  v.  Raweah  C.  Co.,  67  Cal.  7  Lord  v.  Meadville  W.  Co.,  135  Pa.  St. 

2-^1 ;  Platte  Val.  Irr.  Co.  v.  Backers  122;  Colrick  v.  Swineburne,  105  N.  Y. 

(Colo.),  53  Pac.  Rep.  334%[i898].  503;  Menzies  v.  Beedlebane,  2  Wils.  235; 

2  Larimer  &  W.  Res.  Co.  v.  Water  S.  &  Ewing  v.  Colquhoun,  L.  R.  2  App.  Cas.. 

S.  Co.  (Colo.  App.),  42  Pac.  Rep.  1020.  839;  Bickett  v.  Morris,  i  H.  L.  Cas.  47. 

8  Smith  v.  Rochester,  104  N.  Y.  674.  8  Boynton  v.  Oilman,   53  Vt.  17;  Strait 

4Chace  v.  Warsaw  W.  Co.  (Sup.),  29  v.  Brown,  16  Nev.  317;  Springfield  W.- 

N.  Y.  Supp.  729.  w.  Co.  v.  Jenkins,  i  Mo.  App.  Repr. 

5  Union  M.  &  M.  Co.  v.   Dangberg  (C.  699;  Leavenworth-  v.  Prospect  R.  W.  Co. 
C.),  81  Fed.  Rep.  73.  (Com.  PL),  8  Kulp  310;  Colrick  v.  Swin- 

6  Raymond    v.   Wimsette    (Mont.),    31  bure  (N.  Y.),  12  N.  E.  Rep.  427  [1887]. 
Pac.  Rep.  537. 


§  III.          OPERATIONS  PRELIMINARY    TO    CONSTRUCTION.  80 

and  evaporation  is  diminished  in  quantity  so  as  to  deprive  the  lower 
proprietor  of  a  reasonable  amount  of  water.1  It  is  wrongful  to  draw  off  the 
waters  of  a  stream  by  subterranean  percolations.  The  waters  of  the  stream 
cannot  be  diverted  from  their  natural  course,  except  for  the  natural  wants  of 
a  riparian  owner,2  Springs  that  are  the  source  of  a  creek  or  brook  may  not 
be  diverted  to  unknown  subterranean  channels  though  they  do  find  their  way 
back  to  the  creek.3 

A  grant  of  the  waters  of  a  designated  spring  does  not  carry  with  it  the 
right  to  excavate  and  so  get  water  from  neighboring  springs  to  the  full 
capacity  of  a  pipe  laid,  but  only  the  right  to  take  such  water  as  may  flow 
from  the  spring  designated.4 

In  some  states  the  right  to  the  use  of  a  spring  depends  upon  discovery 
and  an  express  declaration  of  location  and  a  claim  of  ownership  of  the  spring 
and  the  waters  flowing  from  it.5  An  appropriator  of  water  in  United  States 
public  lands  is  entitled  to  the  use  of  the  same,  as  against  one  who  subse- 
quently acquires  title  to  the  land  from  the  government.6 

111.  Measure  of  Damages  for  Diversion  of  Waters. — As  before  stated,  a 
riparian  owner  may  recover  nominal  damages  for  the  invasion  of  his  rights 
even  though  he  sustained  no  actual  injury.  If  a  diversion  of  water  results  in 
actual  injury,  the  measure  of  damages  will  be  estimated  by  the  actual  loss 
which  has  been  sustained  and  the  expense  he  has  been  put  to  by  reason  of 
the  diversion  of  the  flow  and  the  use  of  the  water  during  the  time  of  the 
diversion. 7 

It  has  been  held  that  damages  for  diversion  of  a  stream  from  a  manufac- 
tory was  the  diminished  rental  value  of  the  works  during  the  period  of 
diversion.8  Another  case  held  that  the  measure  of  damages  was  the  actual 
value  of  the  use  of  the  water  during  the  time  that  it  was  diverted.9 

In  arriving  at  an  estimate  of  the  value  of  certain  water-powers,  of  which 
the  owner  was  deprived  by  reason  of  the  appropriation  of  the  stream  as  a 
supply  for  a  neighboring  town,  the  stream  being  torrential,  the  commissioners 
properly  estimated  its  average  capacity,  exclusive  of  seasons  of  flood  and 

1  White  v.  East  Lake  L.  Co.  (Ga.),  23       13  N.  Y.  Supp.  12  reversed. 

S.    E.  Rep.  393;  Mitchell  v.  Bain  (Ind.),  5Silver  Peak  Mines  v.  Valcada  (C.  C.), 

42  N.    E.    Rep.    230;    Bruening   v.   Dorr  79  Fed.  Rep.  886;  Taylor  v.  Abbott  (Cal.), 

(Colo.  Sup.),  47  Pac.  Rep.    290;   Hopper  37   Pac.    Rep.   408.     'And  see  Malad  Val. 

v.  Hopper  (Pa.   Sup.),  23  Atl.   Rep.   321.  Irr.    Co.    v.    Campbell    (Idaho),    18   Pac. 

See  Sparlin  v.  Gotcher  (Or.),  31  Pac.  Rep.  Rep.  52  [1888]. 

399-  6  Judkins  *.  Elliott  (Cal.),  12  Pac.  Rep. 

2  Boynton  v.  Oilman,   53  Vt.   17;  Hop-  116  [1887]. 

per  v.   Hopper  (Pa.  Sup.),  23  Atl.   Rep.  7  Merritt  v.   Brinkerhoff,  17  Johns.  (N. 

321.  Y.)  306;   Platt  v.  Johnson,  15  Johns.  (N. 

'Strait  v.  Brown,  16  Nev.  317;  Strick-  Y.)2i3;  Hart  v.  Evans,  8  Pa.  St.  13. 
'ler  v.    Colorado    Spgs.   (Colo.    Sup.),   26  8Colrick  v.   Swinburne,  105  N.  Y.  503. 

Pac.     Rep.     313.      But    see    Leonard     v.  See    Honsee    v.    Hammond    (N.    Y.),    39 

Shatzer  (Mont.),  28  Pac.  Rep.  457.  Barb.  89. 

4Furner  v.   Seabury  (N.   Y.  App.),  31  »  Pollitt  v.  Long  (N.  Y.),  58  Barb.  20. 

N.  E.  Rep.  1004;  69  N.  Y.  ^distinguished, 


8 1  DIVERSION  AND    OBSTRUCTION   OF   WATERS.  §  I  I  3. 

freshet.1  For  diverting  the  waters  of  springs  that  fed  a  fish-pond,  plaintiff 
recovered  only  what  he  lost  in  the  diminished  value  of  the  use  of  the  pond, 
without  reference  to  his  particular  business  or  the  special  use  to  which  the 
fish  were  applied.2 

Under  a  conveyance  of  land  with  the  right  to  use  the  water  from  another 
tract,  evidence  of  the  value  of  plaintiff's  lot  at  the  time  of  the  conveyance, 
without  such  water  right,  is  not  admissible  to  prove  the  damages  caused  by 
defendant's  subsequent  interference  with  the  easement.2  Towns  taking  water 
to  the  injury  of  mill-owners  cannot  show,,  in  reduction  of  damages,  that  a 
certain  amount  of  the  water  would  necessarily  be  returned  after  use  by 
percolation  to  the  river  below,  and  there  become  available  for  mill  purposes.3 

In  an  action  to  enjoin  an  upper  riparian  proprietor  from  diverting  waters 
from  a  creek,  evidence  that  persons  other  than  defendant  have  also  diverted 
water  from  the  stream  is  admissible  on  the  question  of  the  amount  of 
damages.4 

112.  Obstruction  by  Bridges,  Culverts,  and  Embankments. — Streams  are 
often  obstructed  by  the  owners  of  land,,  or  by  companies  which  own  rights  of 
ways  which  traverse  the  land,  to  the  detriment  and  injury  of  riparian  owners 
both  above  and  below  the  structure.    There  can  be  no  doubt  but  that  a  bridge 
or  structure  may  be  built  over  or  under  a  stream  if  it  be  so  constructed  and 
maintained  that  it  does  not  change  the  natural  flow  of  the  stream  and  inter- 
fere with  the  rights  of  other  riparian  owners,  and  of  the  public  in  navigable 
streams.5     If  the  structure  does  interfere  with  the  rights  of  riparian  owners, 
the  one  causing  the  injury  will  be  liable  in  damages.6 

If  the  abutments  of  a  bridge  set  back  the  waters  of  a  stream  upon  the  land 
of  others,  the  persons  owning  or  building  the  bridge  will  be  liable  in  damages. 
It  does  not  matter  that  the  abutments  of  an  old  bridge,  immediately  above 
the  site  of  the  present  structure,  extend  equally  far  into  the  stream.7 

A  railroad  company  that  maintains  a  dam  on  its  right  of  way  over  a  water- 
way, which  constitutes  a  nuisance  in  causing  the  water  to  overflow  adjacent 
land,  is  liable  though  the  dam  was  originally  constructed  by  the  county  under 
legislative  authority.8* 

113.  Diversions  Made  to  Lessen  the  Cost  of  Structures. — A  person  or 
company  erecting  a  bridge  may,  if  it  seems  necessary,  divert  the  watercourse 

1  In  re  Tracy  (Sup.),   16   N.    Y.    Supp.  491;  Fick  z/.   Penna.   R.   Co.,  157   Pa.   St. 
606.  622;    Ohio    &    M.    Ry.    Co.    v.   Thillman 

2  Spencer  v.  Kilmer  (N.  Y.  App.),  45  N.  (111.),  32  N.  E.  Rep.  529;  Smith  v.  Phila., 
E.  Rep.  865.  etc.,  R.  Co.,  57  Fed.  Rep.  903. 

3  Proprietors    v.    Inhabitants    (Mass.),  7Gillespie  z/.   Forest  (N.   Y.),    18    Hun 
32  N.  E.  Rep.  153.  no;    Masonic    Temp.    Assn.    v.    Banks 

4  Gould  v.  Stafford  (Cal.),  18  Pac.  Rep.  (Va.),  27  S.  E.  Rep.  490 

879  [1888].  8  Payne   v.    Kansas  City    R.    Co.    (Mo. 

5  28  Amer.  &  Eng.   Ency.  Law  966.  Sup.),  20  S.  W.  Rep.  322. 
•Bryant  v.  Bigelow  C.  Co.,  131  Mass. 

*  See  Sec.  719  infra,  Obstructions  of  Streets  by  Bridges  and  Viaducts. 


§114-  OPERATIONS   PRELIMINARY    TO    CONSTRUCTION.  82 

to  a  reasonable  extent  from  its  natural  channel  if  he  (it)  makes  such  channels, 
bridges,  culverts,  or  drains  as  may  be  necessary  to  carry  off  the  water  in  the 
direction  which  they  may  give  it.  He  (it)  is  bound  as  part  of  his  (its)  public 
duty  to  keep  such  public  channel,  bridge,  or  culvert  in  suitable  and  sufficient 
repair  to  carry  out  the  purpose  for  which  it  was  made. l  The  company  may 
not  be  required  to  go  to  any  unreasonable  expense,  as  where  a  stream  is  a 
broad,  shallow  watercourse  which  may  be  reduced  in  width  and  deepened  so 
as  to  carry  off  the  water.  The  company  may  do  so  instead  of  bridging  the 
entire  original  width.  A  natural  bed  in  a  watercourse  may  be  changed  where 
the  bottom  or  substratum  is  of  such  a  character  that  it  makes  it  very  difficult 
and  expensive  to  build  the  foundations,  care  being  taken  that  the  new 
channel  should  be  equally  beneficial  with  the  old  one.54  Railroad  and  other 
companies  constructing  roads  across  streams  are  required  to  exercise  the 
same  care  in  erecting  bridges,  viaducts,  and  culverts.3 

114.  Structures  must  Provide  for  Ordinary  Floods  and  Freshets.— A 
bridge,  aqueduct,  or  culvert  must  be  so  constructed  that  it  carries  off  the 
water  of  the  stream  over  which  it  is  built  under  any  circumstances  likely  to 
occur  in  the  usual  course  of  nature,  and  including  such  heavy  floods  and 
freshets  as  are  ordinarily  expected,  although  not  of  common  occurrence.4  It 
is  frequently  held  that  a  company  is  not  liable  for  damages  resulting  from  its 
culverts  or  bridges,  being  insufficient  to  carry  off  the  overflow  caused  by 
extraordinary  and  unusual  rainfalls.5 

If  a  larger  span  in  the  bridge  would  have  obviated  the  flooding  of 
plaintiff's  mill  property,  he  is  entitled  to  recover  for  the  injury,  though  such 
flooding  would  not  have  occurred  if  he  had  not  raised  the  dam  or  built  the 
wall.  The  company  erecting  the  structure  must  provide  for  existing  circum- 
stances.6 Damages  from  the  diversion  of  streams  by  such  structures  are  not, 
it  seems,  covered  by  the  general  laws  providing  for  the  acquirement  of  the 
right  of  way.7  If,  to  save  expense  in  the  construction  of  a  railroad,  the 

iKoch  v.   Del.,  L.  &  W.   R.  Co.  (N.   J.  Civ.  App.),  40  S.  W.   Rep.  1031;  Phila., 

Sup.),  24  Atl.  Rep.  442.  etc.,  R.  Co.  v.  Davis  (Md.),  n  Atl.  Rep. 

2Rowez/.  Granite  Edge.   Co.   (Mass.),  822  [1888]. 

21  Pick.  344.  5  Emery    v.    Raleigh,   etc.,  R.  Co.,   102 

328  Amer.  &  Eng.  Ency.  Law  967.  N.  C.  209;   Knight  v    Albemarle,  etc.,  R. 

4  Pick  v.  Penna.  R.   Co.   (Pa.   Sup.),  27  Co.,  in    N.  C.  80;    Shahan    v.  Alabama, 

Atl.  Rep.  783;  Norfolk   &   W.   R.  Co.   v.  etc.,    R.    Co.    (Ala.),    22    So.    Rep.    449; 

Carter   (Va.),    22   S.  E.  Rep.  517;   Cleve-  Sprague  v.  Worcester  (Mass.),    13  Gray 

land,  etc.,  Ry.  Co.  v.  Nuttall,  59  111.  App.  193:  Fick   v.   Penna.    R.  Co.   (Pa.    Sup.), 

639;  St.    Louis,   etc.,   R.  Co.    v.   Ellis,  58  27  Atl.    Rep.    783;   Orvis  v.  Elmira,  etc., 

111.    App.    no;    Riddle's   Ex'rs    v.   Dela-  R.  Co.  (Sup.),  45   N.  Y.   Supp.  367.     And 

ware   Co.    (Pa.    Sup.),  27    Atl.    Rep.  569;  see  Hunter  v.  Pelham  Mills  (S.  C.),  29  S. 

Wallace  v.  Columbia  &  G.  R.  Co.  (S.  C.),  E.  Rep.  727  [1898],  where  the  negligence 

16  S.  E.  Rep.  35;   N.  Y.  C.  &  St.  L.  R.  Co.  of  the  owner  and  act  of  God  were  coin- 

•v.  Hamlet  Hay  Co.  (Ind.),  47  N.  E.  Rep.  cident. 

1060  [1897];  Fleming  v.  Wilmington,  etc.,  6  Riddle's  Ex'rs  v.  Delaware  Co.  (Pa.), 

R.  Co.  (N.  C.),  20  S.  E.  Rep.  714;  Ohio  &  27  Atl.  Rep.  569. 

M.  Ry.  Co.   v.  Thillman  (111.),   32  N.  E.  7  Ward  v.  Albemarle  R.  Co.  (N.  C.),  16 

Rep.  529;    Bierer  v.  Hurst  (Pa.  Sup.),  26  S.  E.  Rep.  921. 
Atl.  Rep.  742;  Booker  v.  McBride  (Tex. 


8$  DIVERSION  AND    OBSTRUCTION  OF   WATERS.  §  1 15- 

company  diverts  a  stream  from  its  natural  course  under  a  bridge  over  the 
channel  of  another  stream,  it  will  be  liable  in  damages  for  overflows  both 
above  and  below  the  bridge  caused  by  such  diversion,  even  though  the 
waterway  under  the  bridge  was  sufficient  for  the  passage  of  the  waters  in  times 
of  freshets. l 

115.  What  was  an  Extraordinary  Flood  Is  a  Question  for  the  Jury. — 
A  charge  that  if  extraordinary  overflows  had  occurred  within  the  memory  of 
man  prior  to  the  overflow  in  question,  the  recurrence  thereof  should  have 
been  anticipated  and  the  probable  danger  provided  for,  is  error,  for  it  is  the 
province  of  the  jury  to  determine  whether  or  not,  under  the  particular 
circumstances  of  the  case,  defendant  should  have  anticipated  the  recurrence 
of  such  floods  as  had  previously  occurred.2  Whether  a  flood  was  extraor- 
dinary on  a  particular  stream  is  a  question  for  the  jury,  there  being  evidence 
that  within  forty-two  years  there  had  occurred  four  other  floods  of  almost 
equal  force  and  volume  of  water.3  The  jury  must  determine  whether  a 
bridge  has  an  opening  for  the  flow  of  water  of  sufficient  capacity  to  meet  all 
the  ordinary  exigencies  of  the  climate  and  the  situation  of  the  stream,  dnd 
also  such  extraordinary  exigencies  as  experience  would  lead  the  residents  in 
that  vicinity  to  believe  might  sometimes  occur.4  It  is  for  the  jury  to  say 
whether  an  owner  has,  by  the  erection  of  a  dam  or  other  structure,  materially 
diminished  the  natural  flow  of  water.5  In  determining  what  is  an  extraordi- 
nary flood  on  a  particular  stream,  the  jury  must  consider  what  should  be 
expected  in  such  stream  from  its  character,  the  adjacent  territory,  and  the  fact 
that  there  had  been  several  previous  floods  of  equal  force  and  volume.6 

If  the  flood  complained  of  could  have  been  avoided,  the  company  will 
not  be  relieved  from  damages,  though  it  has  the  right  ' '  to  change  the  water- 
course and  take  water."  7 

The  act  of  a  landowner  in  diverting  a  stream  of  water  to  a  new  channel 
Mhen  a  railroad  crossing  has  obstructed  the  flow  of  the  water  does  not  lose 
his  right  to  have  the  water  flow  in  the  old  channel,  unless  it  be  shown  that 
he  intended  permanently  to  abandon  it,  and  this  question  of  intention  is  a 
question  for  the  jury.8  If  a  bridge  be  erected  and  its  abutments  so  placed  as- 


1  Adams   v.  Durham   &   N.  R.  Co.  (N.  4  Higgins  v.  New  York.  L.  E.  &  W.  R. 
C),  14  S.  E.  Rep.  857;  Koch  v.  Del.   L.  Co.  (Sup.),  29  N.  Y.   Supp.   563:  Illinois. 
&  W.  R.  Co.   (N.  J.    Sup.),   24   All.  Rep.  Cent.  R.  Co.  v.  Wilbourn  (Miss.),  21  So. 
442.  ReP-  i- 

2  Gulf,  C.  &  S.   F.  Ry.  Co.  v.  Calhoun  5  N.  Y.  Rubber  Co.  v.  Rothery  (Sup.), 
(Tex.),    24   S.   W.    Rep.    362;   Hunter   v.  23  N.  Y.  Supp.  247. 

Pelham    Mills   (S.  C.),  29  S.  E.  Rep.  727  6  Brown    v.   Pine    Creek    Ry.   Co.,  182 

[jggg].  Pa-  St.  38.      See  Hunter  v.  Pelham  Mills 

3  Brown   v.    Pine   Creek    Ry.   Co  ,   183  (S.  C.),  29  S.  E.  Rep.  727  [1898], 

Pa.  St.  38,  the  Johnstown  Flood  of  1889;  7  St.  Louis,    etc.,  R.    Co.    v.  Harris,  47 

Ohio  &  M.  R.  Co.  v.  Thillman  (111.  Sup  ),  Ark.  340. 

32  N.  E.  Rep.  529,  two  such  floods  in  five  8  Mississippi   Cent.    R.  Co.    v.   Mason, 

years;  Hunter  v.    Pelham  Mills   (S.  C.),  51  Miss.  234. 

29  S.  E.  Rep.  727  [1898]. 


§  I  1 6.          OPERATIONS   PRELIMINARY    TO    CONSTRUCTION.  84 

to  discharge  the  water  in  times  of  flood,  the  owner  of  the  bridge  is  not  liable 
for  the  obstruction  of  surface-water  flowing  on  his  land.1 

116.  Liability  for  Obstruction  During  Erection  Authorized  by  Law.— 
One  who  of  his  own  authority  interferes  with  a  watercourse,  even  upon  his 
own  land,  does  so  at  his  peril  as  respects  other  riparian  owners  above  or 
below;  but  when  one  acts  under  the  authority  of  the  law,  as  for  the  purpose 
of  constructing  public  works  upon  making  compensation,  he  has  the  sanction 
of  the  state  in  what  he  does,  and  unless  he  commits  a  fault  in  the  manner  of 
doing  it  he  is  completely  justified.  For  obstructing  a  stream  he  is  then 
liable  only  for  such  injury  as  results  from  the  want  of  due  skill  and  care  in  so 
arranging  necessary  works  as  to  avoid  any  danger  reasonably  to  be  anticipated 
from  the  habits  of  the  stream.2  If  the  erection  of  a  bridge  by  a  railroad  com- 
pany is  duly  authorized  by  law,  the  company  is  not  responsible  for  damages 
arising  from  the  temporary  obstruction  of  the  stream,  or  by  the  construction 
of  a  temporary  stationary  bridge,  or  by  any  unavoidable  delay  in  the  comple- 
tion of  the  bridge.3  The  obstruction  of  a  navigable  stream  while  building 
the  bridge  over  it  is  not  in  violation  of  the  law,  where  such  obstruction 
extended  over  no  more  of  the  stream  at  any  one  time,  and  was  continued  for 
no  longer  period,  than  was  absolutely  required.4 

Where  it  is  necessary  for  a  commissioner  of  highways,  in  the  discharge  of 
his  public  duty,  to  shut  off  the  water  from  a  mill  in  order  to  repair  a  culvert 
forming  part  of  an  artificial  watercourse  or  tailrace  passing  under  a  public 
street,  and  the  repairs  are  prosecuted  with  diligence  and  reasonable  care,  the 
commissioner  is  not  liable  for  damages  for  the  loss  of  power  to  the  mill 
pending  such  repairs.5  Damages  for  permanent  injury  cannot  be  awarded  for 
a  nuisance  created  by  the  temporary  cessation  of  the  work  of  converting  a 
creek  into  a  sewer,  caused  by  litigation  over  city  bonds  designed  for  its 
payment.6  Whether  the  extent  and  duration  of  the  obstruction  renders  such 
obstruction  unlawful  is  for  the  jury.7 

Where  a  railroad  company,  empowered  by  its  charter  to  erect  and  maintain 
a  bridge  "  so  as  not  unreasonably  to  obstruct  navigation,"  erected  a  temporary 
bridge  which  interfered  with  navigation,  but  arranged  to  transfer  all  freight 
without  extra  charge  to  shippers  and  public  convenience  was  in  fact  subserved 
by  the  plan  pursued  by  the  railroad  company,  this  was  held  not  an  unreason- 
able obstruction  of  navigation,  and  a  shipper  is  not  entitled  to  recover  the 
extra  freight  paid  for  transportation  by  rail.8 

When  defendant  obstructed  a  stream  for  the  purpose  of  doing  certain  work, 

1  Conhocton  S.  R.   Co.  v.  Buffalo,  etc.  6  Kerr  v.  Joslin  (Sup.),  20  N.  Y.  Supp. 
Co.  (N.  Y.),  3  Hun  523.  929. 

2  Bellinger  v.  N.  Y.  Central  R.  Co.,  23  6  Schoen  z/.  Kansas  City,  65  Mo.  App. 
N.Y.  42[i86i].  134 

3  Hamilton  v.  Vicksburg,  etc.,  R.  Co.,  7  Cantwell  v.  Knoxville,  C.  G.  &  L.  R. 
34  La.  Ann.  970.  Co.  (Tenn.),  18  S.  W.  Rep.  271. 

4  Cantwell  v.  Knoxville,  C.  G.  &  L.  R.  8  Rhea  v.   Newport  R.  Co.   (Cir.   Ct.). 
Co.  (Tenn.),  18  S.  W.  Rep.  271.  50  Fed.  Rep.  16. 


8$  DIVERSION  AND    OBSTRUCTION  OF   WATERS.  §  1 1 8. 

under  contract  with  a  city,  which  would  require  from  four  days  to  three 
months  to  do,  and  which  might  be  accomplished  at  a  little  added  expense  in 
another  way  without  obstructing  the  stream,  and  an  overflow  filled  cellars  of 
a  building  with  offensive  and  filthy  water,  productive  of  disease  to  the  tenants 
in  the  building,  it  was  held  that  the  further  obstruction  of  the  stream  might 
be  enjoined,  though  at  his  own  expense  the  plaintiff  might  possibly  have 
warded  off  disease.1 

It  is  error  for  the  court  to  charge  the  jury  that  "  plaintiff  had  the  right  to 
have  the  waters,  whether  rain-water  or  spring-water,  flow  as  they  naturally 
would  have  flowed  without  any  obstruction  by  the  railroad,"  since  the  com- 
pany is  not  liable  for  an  obstruction  incident  to  ^a  proper  construction  and 
use  of  its  property.2 

117.  Stream  Contracted  by  Structure  and  Consequent  Overflow. — Con- 
tracting a  natural  stream  between  two  abutments  from  150  feet  apart  to  92 
feet  apart,  so  that  the  surface  of  the  water  up-stream  at  a  mill-dam  is  raised 
five  feet  and  the  premises  are  injured   in  a  freshet,  was  held  an  actionable 
nuisance.3     If,  however,  the  bridge  were  constructed  so  that  it  would  take 
care  of  all  waters  except  upon  the  occasion  of  an  extraordinary  flood,  no 
liability  would  have  attached.4 

The  same  law  is  applicable  to  the  construction  and  maintenance  of 
bridges  by  municipal  corporations.5  Bridges  must  be  so  constructed  and 
maintained  as  not  to  interfere  with  the  natural  flow  of  streams  not  only  when 
at  ordinary  heights,  but  also  when  swollen  with  floods  to  which  they  are 
subject.  A  sufficient  opening  for  the  discharge  of  waters  in  times  of  flood  as 
well  as  at  other  times  must  be  left,  and  the  city  or  village  will  be  liable  for 
any  failure  to  so  design  their  structures  if  land  is  flooded  or  damaged.6 
Culverts,  aqueducts,  and  drains  must  be  constructed  of  sufficient  length  and 
cross-section  to  carry  away  waters  of  occasional  extraordinary  floods.7  When 
injuries  have  resulted,  it  is  no  defense  that  the  culvert  was  constructed  in  the 
usual  manner. 8  Any  structure  maintained  by  a  railroad  company  in  such  a 
manner  as  to  constitute  a  nuisance  will  make  the  company  liable  for  the 
damages  resulting,  notwithstanding  it  was  originally  erected  by  the  county 
under  legislative  authority.9 

118.  Injunction  to  Restrain  Obstruction  of  Stream,  Without  Proof  of 
Damages. — It  is  not  necessary  to  wait  until  the  injury  has  been  done  if  it  can 

1  Masonic    Temple    Ass'n    v.     Banks  App.   213;  New   York   Union   T.  Co.   v. 
(Va.),  27  S.  E.  Rep.  490.  Cuppy,  26  Kan.    754;  28   Amer.  &  Eng. 

2  Illinois    Cent.    R.    Co.    z/.    Wilbourn  Ency.  Law  968,  and  cases  cited. 
(Miss.),  21  So.  Rep.  I.  7  Carriger    v.    E.    Tennessee    R.    Co. 

3  Taylor  v.  Baltimore,  etc.,  R.  Co.,  33  (Tenn.),  7  Lea  388. 

W.  Va.  39.     See  Orvis  v.  Elmira  C.  &  N.  8  Van   Orsdol    v.    Burlington,   etc.,  R. 

R.  Co.  (Sup.),  45  N.  Y.  Supp.  367.  Co.,  56  la.  470. 

4  Wabash  R.   Co.    v.    Sanders,    58  111.  9  Payne  v.  Kansas  City,  etc.,   R.  Co.. 
App.  213.  112  Mo.  6;  Ohio  &  M.  Ry.  Co.  v.  Thill- 

5  Haynes  v.  Burlington,  38  Vt.  350.  man  (111.;,  32  N.  E.  Rep.  529. 

6  Wabash    R.    Co.   v.   Sanders,   58   111. 


§119-          OPERATIONS  PRELIMINARY   TO    CONSTRUCTION.  86 

be  shown  that  damages  will  result.  An  action  will  lie  to  restrain  a  railroad 
company  from  flooding  plaintiff's  land  by  the  construction  of  an  embankment 
across  a  stream,  with  an  insufficient  culvert  to  permit  the  passage  of  the 
water,  even  though  no  damages  have  as  yet  accrued,  where  no  money  judg- 
ment is  asked.1  If  there  be  a  reasonable  doubt  whether  the  work,  as  the  filling 
in  under  a  bridge,  will  obstruct  the  natural  flow  of  water,  an  injunction  will 
be  denied  until  the  question  is  determined  by  the  actual  use  of  the  property.2 

119.  Structures  must  be  Kept  Free  of  Obstructions, — It  is  the  duty  of  a 
railroad   company  to  keep  its  culverts    unobstructed.3     It  is  not   liable  for 
injuries  if  it  has  exercised  ordinary  care  in  keeping  the  opening  to  the  culvert 
unobstructed  and  has  constructed  it  of  sufficient  capacity  originally.4 

An  owner  of  land  which  is  drained  of  surface-water  by  a  ditch  of  defend- 
ants, whose  duty  it  is  to  keep  the  ditch  unobstructed,  need  not  enter  on  the 
premises  of  defendant  and  remove  the  obstructions  in  order  to  recover 
damages  resulting  to  his  crops  by  an  overflow  occurring  afterwards  because  of 
such  obstructions.3  If  the  structure  might  have  been  expected  to  prevent  the 
flow  under  such  conditions,  and  if  such  conditions  were  likely  to  arise,  and 
could  have  been  provided  for,  it  is  no  defense  that  the  conditions  arose  by 
the  negligence  of  third  persons  in  throwing  rubbish  into  the  water.6 

A  riparian  owner  is  not  in  duty  bound  to  keep  his  land  (a  ravine)  free 
from  accumulations  and  debris,  so  that  it  shall  not  be  carried  by  high  waters 
and  obstruct  a  culvert  or  passageway.7  A  town  has  been  held  not  to  be 
required  to  keep  open  a  culvert  opposite  the  premises  of  an  adjoining  owner 
merely  to  discharge  surface-waters.8 

If  a  bridge  cause  the  water  and  ice  to  gorge  and  overflow  adjacent 
lands,  the  company  will  be  liable  for  damages  from  the  overflow.  For  this 
to  be  true,  it  is  submitted  that  the  gorging  must  have  been  proved  to  have 
been  the  result  of  the  design  or  character  of  the  bridge  built,9  and  in  the 
absence  of  proof  to  the  contrary  it  is  proper  to  presume  that  the  structure  was 
properly  constructed. 10 

120.  Culverts  in  Railroad  Embankments. — For  a  railroad  company  to 
build  a  solid  embankment  for  its  track  over  a  depression  forming  a  natural 
channel,  wherein  surface-water  was  accustomed  to  flow,  when  it  was  prac- 

1  Lake  Erie  &  W.  R.  Co.  v.  Young  (Ind.       All.  Rep.  783. 

Sup.),  35  N.  E.  Rep.  177;  Phila.  W.  &  B.  5  Baltimore  &  S.  P.  R.  Co.  v.  Hackett 

R.  Co.  v.  Davis  (Md.),  n   Atl.   Rep.  822  (Md.),  39  Atl.  Rep.  510  [1898]. 

[1888].  6  Babbitt    v.   Safety    Fund    Nat.    Bank 

2  Barnard    v.    Commissioners,    71    111.  (Mass.),  47  N.  E.  Rep.  1018  [1897]. 
App.  187  [1897].  7  Simpson  v.  Stillwater  W.  Co.  (Minn.), 

3  West  v.  Louisville,  etc.,  R.  Co.  (Ky.),  64  N.  W.  Rep.  1144. 

8  Bush  404;  Shahan  v.  Alabama   R.  Co.  8  Byrne  v.  Farmington,  64  Conn.  367. 

(Ala.),  22  So.  Rep    449,  509;  Texarkana  And  see  Gardiner  v.  Camden,  86  Me.  376. 

&  Ft.  S   Ry.  Co.  v.  Parsons  (C.  C.  A.),  74  9  McCleneghan  v.  Omaha,  etc.,  R.  Co., 

Fed.  Rep.  408;  semblc  Henry    v.  Ohio  R.  25  Neb.  523. 

R.  Co.  (W.  Va.),  21  S.  E.  Rep.  863.  10Morrisey  v.  Chicago.  B.  &  Q.  R.  Co. 

4  Fick   v.  Penn     R.   Co.  (Pa.    Sup.\  27  (Neb.),  56  N.  W.  Rep.  946. 

\ 


87  DIVERSION  AND    OBSTRUCTION  OF    WATERS.  §  121. 

ticable  to  construct  a  culvert  through  the  embankment,  is  negligence.1  Such 
openings  must  be  provided,  by  bridges  and  culverts,  as  will  discharge  surface- 
waters  in  their  natural  channels. a  However,  the  mere  absence  of  culverts  or 
drains  in  a  railroad  roadbed  to  permit  the  passage  of  water  under  the  roadbed 
does  not  of  itself  render  the  railroad  company  liable  for  damage  to  land  on 
the  higher  side  by  an  overflow,  unless  the  water  might  have  been  discharged 
through  such  culverts  in  such  manner  as  not  to  injure  the  owners  of  land  on 
the  lower  side  by  its  discharge.3  As  a  general  rule,  the  obstruction  of  the 
flow  of  mere  surface-water  from  land  by  the  construction  of  a  railroad  does 
not  constitute  a  cause  of  action  in  favor  of  the  landowner.4  * 

When,  after  an  unprecedented  rainfall,  a  quantity  of  water  was  accumulated 
against  one  of  the  sides  of  the  defendants'  railway  embankment,  to  such  an 
extent  as  to  endanger  the  embankment,  and,  in  order  to  protect  the  embank- 
ment, the  defendants  cut  trenches  in  it  by  which  the  water  flowed  through 
and  went  ultimately  on  the  land  of  the  plaintiff,  which  was  on  the  opposite 
side  of  the  embankment  and  at  a  lower  level,  and  flooded  and  injured  it  to  a. 
greater  extent  than  it  would  have  done  had  the  trenches  not  been  cut,  and 
the  jury  found  that  the  cutting  of  the  trenches  was  reasonably  necessary  for 
the  protection  of  the  defendants'  property,  and  that  it  was  not  done  negli- 
gently, it  was  held  that,  though  the  defendants  had  not  brought  the  water  on 
their  land,  they  had  no  right  to  protect  their  property  by  transferring  the  mis- 
chief from  their  own  land  to  that  of  the  plaintiff,  and  that  they  were  therefore 
liable.5 

To  recover  damages  against  the  bridge  or  railroad  company  it  must  be 
shown  that  the  damages  would  not  have  occurred  if  the  embankment  had  not 
been  located  where  it  was.6 

A  city  in  building  an  embankment  across  a  watercourse  within  its  limits, 
leaving  thereunder  a  culvert  to  discharge  the  waters,  does  not  insure  the 
sufficiency  of  the  culvert  at  all  times,  as  after  an  unusual  rain.  It  must  have 
exercised  due  and  proper  care.  It  is  only  liable  where,  in  the  construction  of 
the  embankment  and  culvert,  it  has  failed  to  employ  and  follow  the  reasonably 
justified  and  honestly  given  advice  of  competent,  engineers.  7j" 

121.  Openings  in  the  Clear  for  Navigation. — Where  a  company  has  been 
authorized  to  construct  a  bridge  by  an  act  which  requires,  among  other 

^ungblum  v.  Minneapolis,  N.  U.  &  S.       61    Wis.   515    [1884].     And  see    62    Wis. 
W.  R.  Co.,  72  N.  W.  Rep.  971.  116;  63  Wis.   183,  232,  and  329;  69  Wis. 

2  Norfolk  &  W.  R.  Co.  v.  Carter  (Va.),       561;  70  Wis.  444. 

22   S.   E.   Rep.    517;   Borchsenius  v.  Chi-  5  Whalley   v.   Lancashire  &   Yorkshire 

cago,    etc.,    Ry.    Co.    (Wis.),    71    N.    W.  Ry.  Co.,  L.  R.  13  Q.  B.  Div.  131  [1884]. 
Rep.  884;  Ohio  &  M.   Ry.  Co.  v.  Thill-          6 Morris  v.  Receivers  of  R.  Co.  (C.  C.), 

man  (111.),  32  N.  E.  Rep. '529.  65  Fed.  Rep.  584. 

3  Borchsenius  v   Chicago,  St.   P.  M.   &  '  Taubert  v.  St.  Paul  (Minn.),  71  N.  W.. 
O.  R.  Co.(Wis.),  7i  N.  W.  Rep.  884.  Rep.  664. 

*Hanlin  v.  Chicago  &  N.  W.  Ry.  Co., 

*  See  Sees.  176-179,  infra.  f  See  Wait's  Engin.  &  Arch.  Jurisp.,  §§  245-248.. 


§121.          OPERATIONS  PRELIMINARY    TO    CONSTRUCTION.  88 

things,  that  the  openings  of  the  draw  of  such  bridge  shall  be  130  feet  in  the 
clear,  and  that  the  plans  shall  be  approved  by  the  Secretary  of  War,  and 
which  provides  that  the  bridge  shall  not  be  built  until  such  plans  have  been 
approved,  and  the  bridge  has  been  built  with  openings  of  the  draw  only  125 
feet  in  the  clear,  and  no  evidence  is  offered  to  show  that  the  plans  had  ever 
been  submitted  to,  or  approved  by,  the  Secretary  of  War,  it  was  held  that  the 
bridge  was  an  illegal  structure  and  a  public  nuisance,  and  the  company  is 
liable  for  any  damages  resulting  therefrom.  * 

If  it  be  stipulated  that  there  should  be  "a  draw  in  said  bridge  in  the 
channel  of  the  river  in  such  place  as  the  same  is  deepest  and  most  easily 
navigable,  not  less  than  thirty  feet  wide,  for  the  passage  of  vessels  through 
said  bridge,"  and  if  the  bridge  be  not  built  directly  across  the  current,  per- 
pendicular to  it,  then  it  must  leave  a  clear  width  of  thirty  feet  open  across 
the  channel,  estimating  with  reference  to  its  curve  and  the  obliquity  of  the 
bridge.2 

The  public  is  entitled  to  the  unobstructed  use  of  every  part  of  a  navigable 
river,  from  bank  to  bank,  which  at  the  ordinary  stage  of  the  water  is  of  such 
depth  and  accessibility,  with  respect  to  the  main  body  of  the  stream,  as  to  be 
capable  of  navigation  by  boat,  or  of  valuable  floatage,  whether  such  part  has 
ever  been  so  used  or  whether  there  is  any  present  or  anticipated  necessity  for 
so  using  it.3 

Where  a  railroad  company,  under  authority  from  the  state,  constructed  its 
bridge  across  the  inlet  of  a  navigable  river,  over  land  owned  by  the  state,  in 
such  a  way  that  the  riparian  owners  above  the  inlet  had  reasonable  means  of 
access  to  the  channel  of  the  river  for  boats  which  the  inlet  in  its  natural  state 
would  float,  it  was  held  that  the  bridge  was  not  an  illegal  obstruction,  as 
regards  a  riparian  owner  desiring  to  secure  access  to  the  river  channel  by  an 
artificial  channel  for  use  by  large  boats,  so  as  to  entitle  such  owner  to 
damages  for  such  obstruction.4 

The  person  obstructing  a  stream  may  be  liable  to  persons  using  it  for 
navigation,  as  when  plaintiff  was  prevented  from  floating  lumber,  to  market 
for  delivery,  which  he  had  already  sold. 5 

A  large  raft  of  saw-logs,  belonging  to  the  defendant,  while  being  towed 
across  a  navigable  lake  was  broken  up,  and  the  logs  scattered  in  many  direc- 


xTexarkana  &  Ft.  S.   Ry.  Co.  v.  .Par-  3  Tennessee  &  C.   R.  Co.   v.   Danforth 

sons  (C.  C.  A.),  74  Fed.   Rep.  408.     See  (Ala.),  20  So.   Rep.   502.     See  Hedges  v. 

Gildersleeve   v.    N.   Y.,  N.   H.  &  H.  R.  West  Shore  R.  Co.  (N.  Y.  App.),  44  N. 

Co.,  82  Fed.  Rep.  763  [1897],  where  the  E.  Rep.  691. 

channel  had  a  sloping  rip-rap  below  low  4  Hedges  v.  West  Shore  R.  Co.  (N.  Y. 

water.  App.),  44  N.  E.  Rep.  691;  30  N.  Y.  Supp. 

2  Alsante  v.  Charlestown    Bridge   Co.,  ^reversed.     And  see  Potter  v.  Ind.,  etc., 

41  Fed.  Rep.  365.     See  United  States  v.  R.  Co.  (Mich.),  54  N.  W.  Rep.  956. 

Rider  (Dist.'Ct.).  5°  Fed.  Rep.  406,  as  to  5Glick  v.  Weatherwax  (Wash.),  45  Pac. 

what  is  not  a  reasonable  time  to  erect  a  Rep.  156. 
drawbridge. 


89  DIVERSION  AND    OBSTRUCTION  OF    WATERS.  §  121. 

tions,  by  an  unexpected  storm.  Many  of  the  logs  were  afterwards  recovered, 
and  reasonable  efforts  made  to  recover  the  others,  which  were  still  floating  on 
the  lake  about  six  months  afterwards,  when  a  storm  of  unprecedented  severity 
and  fury  arose  and  drove  some  of  the  logs  with  great  force  against  a  break- 
water constructed  to  protect  plaintiff's  railroad  tracks  and  embankment, 
breaking  it,  and  letting  in  the  water,  greatly  damaging  plaintiff's  property. 
It  was  held  that  the  defendants  were  not  liable  for  such  damage,  though  they 
claimed  the  logs.1 

JNew  Orleans  &  N.  E.  R.  Co.  v.  McEwen  &  Murray,  22  So.  Rep.  675. 


CHAPTER   IX. 
PROTECTION   OF  BANKS  AND   STRUCTURES  FROM   WATERS. 

131.  In  Protecting  Bank  or  Structures  Care  and  Skill  must  be  Exer- 
cised.— A  riparian  owner  must  exercise  reasonable  care  and  skill  and  avoid 
defects  in  the  erection  of  a  barrier  to  his  own  land,  and  is  liable  for  injuries 
to  others  for  the  want  of  such  care  and  skill. 1     These  cases  of  protection  of 
one's  property  from  the  encroachments  of  a  stream  frequently  come  up  in 
the  protection  of  railroad  embankments  and  other  railroad  structures.     If  a 
railroad  embankment  be  constructed  in  a  creek's  mouth  so  as  to  prevent 
the  water  from  flowing  in  its  accustomed  channel  to  the  injury  of  another, 
the    company  will  be    liable   for   such    injury  if  it  be  from  the  direct  and 
immediate  consequences  of  the  act.2 

A  riparian  proprietor  has  no  right  to  construct  a  levee  which  will  raise  the 
water  flowing  in  the  stream  at  times  of  ordinary  floods  so  as  to  endanger  the 
bridge  and  other  structures  of  the  railway,  and  will  also  throw  such  water 
upon  lands  on  the  opposite  side  of  the  river,  thereby  subjecting  the  railway 
company  to  suits  for  damages. 3  The  fact  that  a  riparian  owner  has  altered  a 
bank,  embankment,  or  structure  does  not  in  itself  show  a  cause  of  action  ; 
the  complaint  must  allege  and  disclose  some  tortious  act.4 

132.  Must   Exercise   Prudence,   Foresight,   and    Good   Judgment,  —  A 
riparian  owner  has  no  right  to  divert  a  stream,  from  any  part  of  its  accustomed 
course,  to  the  injury  of  other  owners.      His  efforts  to  protect   his  property 
must  be  confined  to  the  protection   of  his  land  from  overflow  by  any  change 
from   the  natural  state  of  the   stream,  and  to  prevent  any  change  in  its  old 
course.      He  has  not  the  right,  for  his  own  greater  convenience  and  benefit,  to 
build  anything  wrhich  in  times  of  ordinary  flood  will  throw  the  water  on  to 
the  grounds  of  another  owner  so  as  to  overflow  and  injure  them.5     That  a 
dam  was  erected  to  protect  one's  land  from  an  increased  volume  of  water  is 

1  Grant  v.  McDonogh,  7  La.  Ann.  447;  *  Koch  v.  Del.,  L.  &  W.  R.    Co.  (N.  J.), 

Savannah,  etc.,   R.    Co.    z/.    Lawton,    75  24  Atl.  Rep.  442. 

Ga.  192.  5  Parker   v.   Atchison    (Kan.),    48  Pac. 

2Tinsman  v.   Belvedere,  etc.,  Co.,  26  Rep.  631;  Burwell    v.   Hobson  (Va.),  12. 

N.  J.  Law,  148.  Gratt.  322;  Koch  v.   Delaware,  L.  &  W, 

'Cairo,    V.  &  C.   Ry.  Co.  v.   Brevoort  R.  Co.  (N.  J.  Sup.),  24  Atl.  Rep.  442. 
(C,  C.),  62  Fed.  Rep.  129. 

90 


9*  PROTECTION  OF  BANKS  AND    STRUCTURES.  §133- 

no  defense  to  an  action  by  one  riparian  owner  against  another  for  obstructing 
a  stream  by  the  dam. 1 

The  owner  of  land  situated  upon  a  stream  of  water  has  the  right  to  con- 
struct embankments  thereon  for  the  purpose  of  protecting  it  from  the  currents 
of  the  stream  or  otherwise  benefiting  it,  subject  to  the  duty  of  so  construct- 
ing the  same  as  not  to  occasion  material  injury  to  the  land  of  others  situated 
upon  the  stream,  where  the  same  may  be  avoided  by  the  exercise  of  ordinary 
care,  intelligence,  and  foresight.  It  is  his  duty,  in  the  first  instance,  to 
exercise  such  prudence  and  care  as  an  ordinarily  careful  and  intelligent  man 
might  have  exercised,  to  determine  whether  his  proposed  embankments  would 
cause  material  injury  to  the  lands  of  his  neighbor  at  the  time  of  such  floods  as 
might  reasonably  be  anticipated  at  any  season  of  the  year.  By  material 
injury  must  be  understood  an  injury  resulting  in  damages  of  a  substantial 
nature,  not  merely  nominal,  and  which  are,  in  some  cases,  awarded  to 
prevent  a  wrong  from  ripening  into  a  right  by  a  lapse  of  time.  The  use  of 
streams  and  their  water  is,  among  riparian  proprietors,  a  matter  of  common 
right,  and  an  invasion  of  the  individual  right  of  one  cannot  be  appreciated 
until  some  act  is  done  by  another  in  excess  of  the  common  right.2 

Where  an  owner  constructs  an  embankment  for  the  protection  of  his  own 
lands,  and  the  same  occasioned  substantial  injury  to  the  lands  of  his 
neighbor,  and  it  might  have  been  reasonably  anticipated  as  one  of  the  probable 
results  of  its  action  upon  the  currents  of  the  stream  at  the  time  it  was  con- 
structed, and  would  have  been  anticipated  by  a  man  of  ordinary  prudence 
and  intelligence,  the  owner  is  liable  in  damages  for  the  injury  so  occasioned; 
otherwise  not.  Where  it  appears,  from  the  subsequent  action  upon  the  current 
of  a  flood  that  might  reasonably  be  expected  to  recur  in  the  course  of  the 
seasons,  that  it  causes,  and  will  continue  at  the  time  of  such  floods  to 
occasion,  substantial  injury  to  his  neighbor,  it  then  becomes  his  duty  to 
abate  or  so  modify  it  as  to  avoid  such  injury;  and  if  he  fails  to  do  so,  he 
must,  from  the  time  its  tendency  to  do  injury  became  apparent,  respond  in 
damages  awarded  for  the  injury  occasioned  for  the  time  just  stated. 8 

133.  Return  of  Stream  to  its  Old  Channel. — If,  during  times  of  flood,  the 
stream  breaks  from  its  natural  course  and  encroaches  upon  the  land  of  a 
riparian  owner,  he  may,  by  embankments,  piling,  and  cribwork,  return  the 
stream  to  its  old  channel.  During  freshets  streams  often  cut  through  the 
banks  and  make  new  channels  where  they  would  continue  to  run  if  not 
prevented.  In  such  cases  the  owner  through  whose  land  it  has  cut  may  for 
"his  own  protection  erect  a  barrier  across  the  new  channel  in  order  to  confine 
the  waters  to  their  original  course.  He  should  not  build  such  a  barrier  into 
the  stream  so  as  to  interfere  with  its  original  flow,  nor  should  he  build  it 

1  Bliss  v.  Johnson  (Cal.),  18  Pac.   Rep.        529  [1886];  Hunter   v.  Pelham   Mills  (S. 
785  [1888]    "  C.j,  29  S.  E.  Rep.  727  [1898]. 

2Cranford  v.  Rambo  (Ohio),  22  Reptr. 


§  134-          OPERATIONS   PRELIMINARY    TO    CONSTRUCTION.  Q2 

higher  than  the  original  bank  if  such  extra  height  will  cause  damage  to  his 
neighbors. l 

Piling,  cribwork,  or  a  dam  across  the  newly  made  channel  should  be 
built  before  the  right  has  been  lost  by  acquiescence  in  the  flow  in  the  new 
channel. *  * 

134.  Protection  of  Land  from  Encroachment  of  Stream. — Embankments 
or  barriers  may  be  erected  by  a  riparian  owner  to  protect  his  land  from  an 
overflow,  or  to /prevent  a  change  in  the  natural  course  of  the  stream,  or 
the  making  of  the  channel.  He  may  take  such  steps  for  the  protection  of 
his  land  and  for  the  keeping  of  the  channel  in  its  old  course,  if  he  does  not 
thereby  throw  the  waters  upon  another's  land.  He  must  take  care  not  to 
do  injury  to  his  neighbor  even  in  the  case  of  freshets  and  ordinary  floods.3 

If  a  change  in  the  course  of  a  stream  be  threatened,  he  may  build  a  bulk- 
head as  high  as  the  original  bank  was  before  it  was  washed  away.4  Each 
riparian  owner  has  a  right  to  the  enjoyment  of  the  waters  of  a  stream  as  it 
flows  by  his  premises,  and  a  right  also  to  modify  and  limit  the  current  upon 
the  property  as  will  best  subserve  his  own  notions  of  propriety.  He  may 
construct  and  maintain  embankments  to  protect  any  part  of  his  land  from 
being  injured  by  overflowing  of  the  stream  in  times  of  high  water.  His  right 
to  deal  with  the  stream  and  control  its  current  must  be  exercised,  however, 
with  a  just  regard  to  the  rights  of  others.  He  may  not  divert  the  waters  of 
the  river  from  his  lands  and  cause  them  to  flow  over,  upon,  or  against  those 
of  his  neighbor  to  the  latter' s  substantial  injury,  no  matter  how  beneficial  it 
may  be  to  his  own  lands.5 

To  what  extent  a  riparian  owner  may  go  to  protect  himself  will  depend  of 
course  upon  the  peculiar  circumstances  of  each  case.  It  has  been  held  that 
he  was  not  answerable  for  damages  caused  by  protecting  himself  from  extraor- 
dinary or  unusual  floods.  It  has  been  held  that  a  canal  company,  fearing  a 
flood  and  overflow  of  a  river  into  the  canal,  may  insert  planks  in  the  canal 
embankment  to  keep  the  overflowing  water  out  of  the  canal.  In  a  case 
where  a  canal  company  had  adopted  such  a  means  of  protection  and  the 
water  found  its  way  into  the  canal  and  by  reason  of  the  planking  rose  to  a 
greater  height  than  it  would  otherwise  have  done,  to  the  injury  of  the  owner, 
it  was  held  that  the  canal  company  was  not  liable,  as  it  had  done  nothing  to 

1  Pierce  v.  Kinny  (N.  Y.),  59  Barb.  56;  (111.  Sup.),  32  N.  E.  Rep.  527;  Collins  v. 
Parker  v.  Atchison  (Kan.),  48  Pac.  Rep.  Macon,  69  Ga.  542;  Knight  v.  Albemarle 
631.  R.  Co.   (N.  C.),    15  S.  E.   Rep.   929;  Die- 

2  Woodbury  v.  Short,  17  Vt.  387.  drich  v.  N.  W.  Union  R.  Co.,  42  Wis.  248; 

3  Parker   v.  Atchison  (Kan.),   48    Pac.  Miller  v.  Milwaukee,  14  Wis.  642. 
Rep.   631;  Barnes   v.    Marshall,   68   Cal.  4  Barnes  v.  Marshall,  68  Cal.  569. 
569;    Boston    Mfg.    Co.    v.    Burgin,    114  5  Cranford  v.  Rambo,  44  Ohio  St.  279; 
Mass.  340;  Shelbyville  Tpk.  Co.  v.  Green,  Parker  v.  Atchison  (Kans.),  48  Pac.  Rep. 
99  Ind.  205;  Cairo,  etc.,  Co.   v.   Stevens,  631. 

73  Ind.  278;  Ohio  &  M.  Ry.  Co.  v.  Webb 

*  As   to   what  length  of  time   will  be   considered  an  acquiescence,  see  Sees.  500, 
661-681. 


93  PROTECTION  OF  BANKS  AND    STRUCTURES.  §  136. 

affect  the  natural  channel  of  the  river,   but  had  only  tried  to  protect  itself 
against  a  threatening  disaster  which  was  common  to  both.1 

135.  Riparian  Owners  Have  Equal  Rights  to  Protect  their  Lands.— 
When  a  riparian  owner  has  sought  to  protect  his  land  by  an  embankment 
which  causes  more  than  the  natural  flow  upon  the  land  of  a  neighbor,  he 
cannot  complain  if  his  neighbor  also  protects  himself  by  embankments  and 
dams  and  throws  water  back   upon  him.2     To  what  extent  two  opposite 
riparian   owners   could  carry  this  warfare  would  probably  depend   upon   its 
effect    upon    up-stream    riparian    owners.      Such    a   warfare   should    not  be 
encouraged  by  the  courts,   for  it  could  not  be  persisted  in  without  serious- 
injury  to  other  interests.3 

136.  Protection  Against  Overflow  in  Times  of  Flood. — In  wide  valleys 
where  flood-waters  cover  large  tracts  of  land,  the  water  of  such  overflowing 
may  be  considered  as  surface-water,  and  a  landowner  incurs  no  liability  in 
protecting  his  land  from  such  waters  by  throwing  them  back  upon  an  upper 
riparian  owner.4* 

The  owner  of  a  railroad  right  of  way  may  protect  it  by  embankments  from 
surface-water  which  would  otherwise  flow  on  it  from  adjoining  lands.5  If  a 
landowner  has  erected  barriers  to  keep  the  overflow  upon  others'  lands  from 
coming  upon  his  lands,  he  must  also  take  care  of  the  waters  from  rain  and1 
snow  and  surface  drainage  which  come  upon  his  lands.  If  he  cannot  within 
the  limits  of  his  lands  turn  them  into  a  natural  watercourse,  it  may  be  a 
problem  to  get  rid  of  them.  He  may  not  collect  them  in  a  well-defined 
watercourse  and  discharge  them  upon  the  land  of  his  neighbor,6  nor  against 
the  land  of  a  lower  riparian  owner.7  The  overflow  of  flooded  lands  is 
regarded  as  a  common  enemy  which  each  proprietor  may  protect  himself 
against  as  he  will.8 

A  railway  company  is  not  liable  for  damage  caused  by  water  thrown  back 
upon  land,  by  the  construction  of  its  embankments,  from  depressions  in  the 
ground,  in  which  water  flows  only  when  a  neighboring  river  overflows  its 
banks.9 

An  owner  of  flat  lands  in  a  valley  has  a  right  to  protect  himself  from 
overflow  from  the  river  in  times  of  flood,  even  though  by  so  doing  he  deepens 
the  water  over  the  lands  of  his  neighbors.  A  city  may  protect  itself  from 

1  Nield  v.  London,  etc.,  R.  Co.,  L.  R.  5Jean  v.  Pennsylvania  Co.  (Ind.  App.), 
10   Exch.    4;    Mailhot   v.   Pugh,    30   La.       36  N.  E.  Rep.  159. 

Ann.  1359.  6  Cairo,  etc.,  R.  Co.  v.  Stevens,  73  Ind. 

2  Merritt  v.  Parker,  i  N.  J.  L.  460;  Wil-       278. 

helm  v.  Burleyson,  106  N.  C.  381.  7  See  Rudel  v.  Los  Angeles  Co.,  50  Pac. 

3  Avery  v.    Empire   W.  Co.,   82   N.  Y.       Rep.  400. 

582;  Harding  v.  Whitney,  40  Ind.  379  8  Cairo,  etc.,  R.  Co.  v.  Stevens,  supra. 

4  Schlichter   v.    Phillipy,   67   Ind.    201;  9  New  York,  C.  &  St.  L.  R.  Co.  v.  Speel- 
Benthal  v.   Seifert,  77  Ind.  302:  Abbott       man  (Ind.  App.),  40  N.  E.  Rep.  541. 

v.  Kansas  City,  etc.,  R.  Co.,  83  Mo.  271. 

*  Set  Sees.  171-200,  Surface-waters,  infra. 


§137-  OPERATIONS  PRELIMINARY    TO    CONSTRUCTION.  94 

overflows  by  building  levees.1  One  who  plants  trees  which  prevent  large 
quantities  of  Driftwood  and  other  materials  from  being  carried  down-stream 
is  not  liable  to  an  up-stream  riparian  owner  for  the  increased  flooding  of  his 
land  nor  the  floating  of  driftwood  upon  it.a 

137.  Deflection  of  Stream  Against  Lower  Kiparian  Owner. — If  the  size 
and  capacity  of  the  culverts  is  insufficient  to  carry  off  and  properly  discharge 
the  waters  of  a  creek  in  times  of  flood,  a  railroad  company  will  be  liable  if  the 
abutments  of  the  structure  are  placed  obliquely  to  the  course  of  the  stream 
in  such  a  manner  as  to  turn  the  water  upon  the  banks.      If  floods  erode  and 
wash  away  the  same,  the  company  will  be  liable,  especially  where  it  appears 
that  the  bridge  could  have  been  erected  with  safety  to  the  railroad  company, 
so  as  not  to  injure  the  same  lands,  at  an  additional  expense.3     Abutments 
should  be  so  placed  as  not  to  deflect  the  currents  of  the  stream  against  other 
structures  or  against  lands  subject  to  errosion.4     If  an  embankment  built  in 
front   of  one's   premises  and   extending  somewhat  into   a  stream's  channel 
forces  water  during  an  unusual  freshet  on  to  the  land  of  the  opposite  shore, 
wearing  away  the  land,  the  owner  of  the  embankment  is  liable.5 

The  law  applicable  to  a  case  where  an  owner  of  land  on  one  side  of  a 
navigable  river,  which  forms  the  boundary  between  two  states,  has  by  artificial 
structures  turned  the  waters  upon  or  against  the  land  of  an  owner  on  the 
opposite  side  of  the  river  is  that  based  upon  the  general  principles  of  the 
Jaw.  The  decisions  of  the  state  courts  are  not  binding  on  the  federal  courts 
in  such  a  case.6 

138.  Measure  of  Damages  for  Deflection  of  Waters.— The  measure  oi 
damages  for  injuries  to  land  by  the  washing  of  the  soil  is  held  to  be  the  differ- 
ence in  value  of  the  land  before,  and  after  the  overflow,  and  of  the  improve- 
ments, their  actual  cash  value,  or  such  sum  as  would,  if  properly  expended, 
restore  the  premises  to  their  former  condition;   and  if  the  beneficial  enjoyment 
of  the  premises  has  been  interfered  with  by  the  destruction  of  the  improve- 
ments, the  rental  value  for  the  time  necessary  to  restore  the  improvements 
should  be  added  to  the  value  of  the  property  destroyed.7 

A  judgment  for  consequent  damages  will  not  bar  a  subsequent  action  for 
damages  caused  by  keeping  the  structure  in  bad  condition.8  It  may  be 

1  Hoard    z/.  Des   Moines,  62  Iowa  326;  31  N.  E.  Rep.  997;  Rogers  2/.  Coal  R.  B. 
Gray  v.  McWilliams,   98   Cal.  157.     And  &  D.  Co.  (W.  Va.),   23  S.  E.  Rep.  919,  a 
see  Lamb  v.    Reclamation   Dist.,  73  Cal.  boom;    Koch    v.    Del.    L.    &    W.    R.    Co. 
125.  (N.  J.),  24  All.  Rep.  442. 

2  Taylor  v.  Fickas,  64  Ind.  167.  6  Cairo,  etc.,  R.  Co.  v.  Brevoort  (C.  C.), 

3  Spencer  v.  Hartford,  etc.,  R.  Co.,  10  62  Fed.  Rep.  129. 

R.  I.    14;  Wabash    R.  Co.  v.  Sanders,  58  7  Graves   v.    Kansas  City,    P.  &  G.  R. 

111.  App.  213;    Shahan   v.  Alabama,  etc.,  Co.,    69    Mo.    App.    574;    Gallagher    v. 

R.  Co.  (Ala.),  22  So.  Rep.  449,  509.  Kingston   W.  Co.  (N.   Y.),  25  App.  Div. 

4  Hartman  v.  Pittsburg  I.  P.  Co.  (Pa.  82;  Sweeney   v.    Montana  Cent.  Ry.  Co. 
Sup.),    28    Atl.    Rep.    145;   De    Baker    v.  (Mont.),  47  Pac.  Rep.  791. 

Southern  Cal.  Ry.  Co.  (Cal.),  39  Pac.  Rep.  8  Cleveland,   etc.,    Ry.    Co.  v.  Nuttall, 

610.  59  HI.  App.  639. 

Hartshorn  v.  Chaddock  (N.  Y.  App.), 


95  PROTECTION  OF  BANKS  AND    STRUCTURES.  §  138. 

shown  that,  at  small  expense  for  rip-rap,  the  injury  could  have  been  avoided 
or  materially  diminished.1  The  situation  of  the  property,  as  of  a  mill  with 
respect  to  custom  and  trade  and  the  productiveness  of  the  neighborhood  in 
grain  crops,  may  be  shown.2 

Another  source  of  injury  to  riparian  property  owners  caused  by  obstruc- 
tions is  the  filling  up  of  the  channel  with  sand  and  silt  where  the  water  set 
back  is  dead  and  still.  If  such  injury  result  from  the  maintenance  of  a  dam 
or  other  obstruction,  the  owner  thereof  will  be  liable.3 

1  Sweeney    v.    Mont.     Cent.    Ry.     Co.  Y.),  25  App.  Div.  82. 

(Mont.),  47  Pac.  Rep.  791;  but  see  Austin,  3  Cline  v.   Baker  (N.  C.),  24  S.  E.  Rep. 

etc.,  R.  Co.  v.  Anderson  (Tex.),  19  S.  W.  516;  Cooley  v.  McKinney  (Ga.),  14  S.  E. 

Rep.  1025.  Rep.    190;  and  see  Jones  v.    DeCoursey 

*  Gallagher  v.    Kingston  W.  Co.  (N.  (Sup.),  42  N.  Y.  Supp.  578. 


CHAPTER   X. 

SUPPLY   OF  WATER   AND    ICE.    WATER   COMPANIES   AND 
WATER-WORKS. 

141.  Ownership  and  Control  by  Municipal  Corporations. — A  municipal 
corporation  has  no  right  to  incur  expenditures  for  public  water-works  unless 
the  power  is  conferred  by  legislative  authority.      Like  any  corporation  it  is  a 
creature  of  statutory  existence.      It  can  exercise  no  powers  or  rights  other 
than   those    conferred    by    statute    either   expressly  or   by    fair   implication. 
Water-works  for  supplying  cities  and  towns  with  water  are  for  public  municipal 
purposes,   and  the  legislature  may  confer  authority  upon  municipalities  to 
erect,  operate,  or  purchase  such  works,  and  to  incur  expenditures,  levy  taxes, 
and  issue  bonds  for  the  payment  thereof.     A  power  to  make  all  contracts 
which  may  be  deemed  necessary  for  the  general  welfare  of  the  city  has  been 
held  to  include  the  power  to  provide  water-  works. l 

142.  Authority  Conferred  by  Certain  Statutory  Provisions. — A  power 
to  construct  a  system  of  water-works  has  been  held  to  authorize  the  contract 
to   be   made    without    passing    ordinances    authorizing   the    works    to    be 
constructed.2    Power  to  provide  for  the  ordinary  expenses  of  a  town  authorizes 
it  to  procure  a  supply  of  water  in  a  public  square,  and  the  city  council  may 
constitute  themselves  the  judges  of  the  mode  best  calculated  to  accomplish 
that    object.3      Power    to    provide    for    maintenance  of  fire-engines   for    the 
extinguishment  of  fires  has  been  held  to   confer  incidental  power  to  make 
provisions    by  reservoirs    or    other    means    for   the  supply  of  water,   without 
which  the  engines  would  be  useless.4     The  time  in  which  a  city  may  purchase 
a  franchise  of  a  water-works    company  must  be  exercised  within  the  limit  of 
time  fixed  by  the  statute.5 

On  the  other  hand  it  has  been  held  that  a  charter  which  contained  a 
general -welfare  clause  conferred  no  power  upon  the  city  to  grant  a  franchise 
to  the  water  company.  It  was  held  that  even  though  a  city  had  power,  by 

I2g  Amer.  &  Eng.  Ency.  Law  2,  and  163.  For  powers  under  general  au- 

cases  cited.  thority  to  make  contracts  for  the  con- 

2  The  Nat.  Tube  Wks.  Co.  v.  Chamber-  struction  of  water-works,  see  Rome  z>. 

lain,  5  Dak.  M  Cabot,  28  Ga.  50. 

'Livingston  v.  Pippin,  31  Ala.  542.  5Ziegler  z/.  Chapin,  126  N.  Y.  342. 

*Hardy   v.  Waltham   (Mass.),    3    Met. 


97  SUPPLY  OF   WATER   AND    ICE.  §  H3- 

virtue  of  its  duty  to  care  for  the  public  welfare  and  safety,  to  contract  for  the 
supply  of  water,  yet  it  could  not  without  express  legislative  authority 
construct,  maintain,  or  operate  water-works.  Under  authority  to  provide  for 
a  supply  of  water,  a  city  may  contract  with  a  water  company  for  that  purpose; 
but  the  reverse  of  this  is  not  true,  namely,  that  authority  to  enter  into  a  con- 
tract with  a  party  to  supply  the  city  with  water  did  not  authorize  the  erection 
of  water-works  owned  by  the  city.  A  general  statute  conferring  the  power 
upon  all  cities  and  incorporated  towns  to  construct  water-works  has  been  held 
to  apply  to  cities  acting  under  special  charters  as  well  as  under  the  general 
corporation  law.1 

143.  Powers  Conferred  by  the  Legislature  upon  Water  Companies. — 
The  legislature  may  confer  upon  a  city  or  a  company  organized  for  that  pur- 
pose the  right  to  condemn  private  property  for  a  water-supply.  It  may 
authorize  the  erection  of  a  dam  in  a  navigable  river,  provided  such  a  dam  does 
not  materially  obstruct  navigation. a  Not  only  may  lands  be  condemned,  but 
water  may  be  taken  from  public  streams  or  ponds,  provided  just  compensation 
is  made  to  riparian  owners.  If  the  city  is  a  riparian  owner  upon  the  stream, 
it  may  take  only  a  reasonable  amount  of  the  water,  the  same  as  any  riparian 
owner,  and  will  be  liable  to  those  injured  for  any  excess  taken.3  If  a  water- 
works supply  a  greater  quantity  than  is  needed  for  the  present  public  use,  the 
city  may,  it  seems,  dispose  of  the  surplus  to  outsiders  without  destroying  the 
public  character  of  the  works.4* 

A  statute  giving  the  city  authority  to  provide  water  and  so  forth,  authorizing 
the  city  council  to  make  sucn  ordinances  as  might  be  deemed  necessary,  was- 
held  to  give  the  city  power  to  acquire  all  water  rights  necessary  to  supply  the 
inhabitants  with  water.  If  a  riparian  owner  stands  by  and  permits  a  city  to 
erect  works  for  a  water-supply  without  first  paying  him  damages,  and,  by 
taking  water  from  the  stream,  diminish  his  mill-power,  it  creates  an  equitable 
estoppel  which  will  prevent  him  from  securing  the  protection  of  an  injunction, 
but  will  leave  him  to  assert  his  rights  at  law.5f 

When,  however,  water  from  springs  has  been  appropriated  under  an  act 
authorizing  the  trustees  of  a  village  to  supply  the  village  with  water,  and  no 
provisions  for  indemnifying  riparian  owners  have  been  made,  it  was  held  that 
an  injunction  might  be  granted  to  prevent  any  proceeding  to  divert  the 
stream  until  provision  was  made  for  compensation  to  those  injured.6 

The  diversion  of  waters  of  a  stream    or   spring  will    not,    it  seems,   be 

I2g  Amer.  &  Eng.  Ency.  Laws.  EnS-  Corp.  Cas.  33  [1891].     And  see  Po- 

2 States.  Eau  Claire,  40  Wis.  533;   Pom-  cantico  W.-w.   Co.   v.  Bird  (N.  Y.  App.), 

pelly  v.   Green   Bay  C.  Co.,  13  Wall.   (U.  29  N.  E,  Rep.  246. 

S.)  166;  29  Amer.  &  Eng.  Ency.  Law  5.  5  Logansport^,,  Uhl,  99  Ind.  531. 

3^Etna    Mills  v.    Waltham,   126   Mass.  6  Gardner  v.  NewT5trrg^^JYM   2  Johns. 

422>  Ch.   162.       And  see  Smith 

4 State  v.  Newark  (N.  ].),  40  Amer.  &  92  N.  Y.  463- 

*  See  Sees.  60-63,  supra.  t  See  Secs-  661-670,  infra. 


§   144-  OPERATIONS  PRELIMINARY    TO    CONSTRUCTION.  98 

allowed  unless  it  is  clearly  necessary  for  the  public  good,  and  the  question  of 
necessity  should  be  controlled  by  the  court.  There  should  be  satisfactory 
evidence  of  the  need.1  Where  the  waters  of  the  creeks  from  which  a  water 
company  receives  its  supply  are  insufficient  in  the  summer-time  to  supply  the 
present  wants  of  the  inhabitants  of  a  growing  city  to  whom  the  company 
furnishes  water,  the  city  shows  a  necessity  for  condemning  the  waters  of  a 
stream  sufficient  in  quantity  and  superior  in  quality,  all  other  streams  nearer 
the  city  being  used  by  the  water  company.2 

The  open,  notori'ous,  exclusive,  uninterrupted,  and  adverse  use  of  waters 
from  a  pond,  stream,  canal,  or  aqueduct  for  the  prescriptive  or  statutory 
period  creates  a  right  to  the  enjoyment  of  such  waters  to  the  extent  of  such 
use.3*  One  cannot  acquire  a  prescriptive  right  to  pollute  a  stream  after  it 
has  been  appropriated  for  the  purpose  of  supplying  a  city  with  pure  water.4  •}• 

144.  Negligent  Construction  of  Water-works. — In  the  operation  of  water- 
works by  a  city,  a  municipal  corporation  is  regarded  as  a  private  corporation, 
and  therefore  is  liable  for  injuries  resulting  from  the  negligent  construction  and 
operation  of  its  works.      The  city  does  not,  however,   insure  its  inhabitants 
against  damages  from  the  construction  and  operation  of  its  works.      Liability 
can  only  arise  from  a  failure  to  exercise  reasonable  care  and  vigilance.5 

The  owner  of  the  bed  of  a  river,  who  also  had  the  right  to  divert  its  waters 
and  sell  them  to  citizens,  has  been  held  not  liable  for  damages  caused  to 
private  property  due  to  the  sudden  overflow  of  the  waters  of  the  river.6 

145.  Negligence  in   Laying   and  Maintaining  Pipes,  etc. — A  city  has 
been  held  liable  for  injuries  to  travelers  resulting  from  negligence  in  laying 
and  maintaining  water-pipes  in  its  streets.     Such  liability  doubtless  grows  out 
of  the  fundamental  principle  of  the  law,  that  a  city  is  bound  to  maintain  its 
streets  in  a  reasonable  and  safe  condition.      If  the  street  is  undermined  by 
water  escaping  from  the  pipes  laid  therein,  and  a  traveler  sustains  injury,  the 
city  may  be  held  liable.7 

Where  water-plugs,  boxes,  and  covers  project  above  the  grade  of  the 
street,  causing  persons  or  horses  to  stumble  and  fall  over  them,  or  vehicles  to 
be  upset,  if  such  projections  are  due  to  negligence  or  want  of  ordinary  care 
in  construction,  the  company  is  liable  for  the  injury  sustained.8  It  was  so 
held  when  the  projection  was  due  to  the  highway  being  worn  away.9  If 

1  State  v.  Morris  Eq.,  26  N.  J.  L.  495.  52Q  Amer.  &  Eng.  Ency.  Law  8;  Rigdon 

2 Santa  Cruz  v.  Enright  (Cal  ),  30  Pac.  v.   Temple   W.-w.   Co.   (Tex.),  22    S.   W. 

"Rep-  197;  Pocantico  W.  Co.   v.   Bird  (N.  Rep.  828,  where  a  water-tower  collapsed. 

Y.  App.)»  29  N.  E.  Rep.  246;  Spring  Val.  See  Wait's  Engin.  &  Arch.  Jurisp.,  Sees. 

W.  Co.  v.  San  Mateo  W.,  64  Cal.  123.  641-646. 

3  Smith  v.  Green  (Cal.),  41    Pac.    Rep.  6  Moore  v.  Los  Angeles,  72  Cal.  287. 
1022;  Bucklin    v.    Truell,    54  N.    H.    122  7  Hand  v.  Brookline,  126  Mass.  324. 
[1873];  Cole    v.    Bradbury,   86  Me.   380;  82g  Amer.  &  Eng.  Ency.  Law  9. 
Alhambra   W.   Co.   v.'  Richardson  (Cal.),  9Kent  v.  Worthing,  L    R.  10  Q.  B.  Div. 
14  Pac.  Rep.  379.  118. 

4  Martin    v.    Gleason,    139    Mass.    183. 

*  See  Sees.  682-690,  infra.  f  See  Sees.  201-230  and  682-^85,  infra. 


99  SUPPLY   OF   WATER   AND    ICE.  §  14,7. 

reasonable  care  and  diligence  have  been  exercised  in  laying  and  maintaining 
the  pipes,  valves,  boxes,  etc.,  the  water  company  will  not  be  liable  for  injuries 
resulting  from  their  projection.1  For  injuries  due  to  the  frightening  of  a 
horse  by  a  stream  of  water  thrown  from  a  city  hydrant  across  the  highway, 
the  city  was  held  liable.2 

146.  Private  Water  Companies. — Power  to  supply  water  to  any  particular 
locality  may  be  delegated  by  the  legislature  to  an  individual  or  a  corporation 
unless  such  delegation  is  expressly  forbidden  by  the  constitution.    The  powers 
conferred  must  be  within  the  provisions   of  the   general   laws   of  the    state. 
Such  a  corporation  cannot  in  general  become  active  or  exercise  the  powers 
contemplated    by    its    organization,    except   on   special    and  direct  authority 
conferred    by   the    state.      To   condemn  and  appropriate  sources    of  water- 
supply,  and  to  enter  upon  public   streets  or  roads  for  the  laying  of  pipes 
or  mains  therein,  requires  express  permission  from  the  state  or  the  muni- 
cipality.3 

Water  companies  being  the  beneficiaries  of  important  and  valuable 
franchises  and  privileges  from  the  state,  and  the  purpose  for  which  they  were 
created  being  for  public  purposes,  they  are  called  public  corporations  and  are 
subject  in  their  operations  to  the  limitations  and  regulations  which  the  legis- 
lature may  impose  upon  such  bodies  in  order  to  protect  public  interests. 

A  water  company  may  own  and  exercise  franchises  in  other  states  than 
that  in  which  it  is  incorporated,  although  not  expressly  authorized  so  to  do 
in  its  charter.4 

147.  Exclusive  Franchises  to  Water  Companies. — Unless  prohibited  by 
the  constitution  of  the  state,  the  legislature  may  grant  to  a  private  corporation 
the  exclusive  right  to  lay  pipes  and  mains  through  the  streets  of  the  city,  and 
to  supply  it  and  its  inhabitants  with  water  both  for  general  use  and  for  fire 
protection.     A  constitutional  inhibition  against  the  creation  of  perpetuities 
and    monopolies  has    been    held  to  forbid  the  grant  of    such    an  exclusive 
privilege  even  for  a  term  of  years.5       The  city  has  no  power  to  grant  an 
exclusive  right  of  this  character,  unless  authorized  to  do  so  in  express  terms 
by  the  legislature.      The  validity  of  an  ordinance  conferring  such  an  exclusive 
right  may  be  contested  by  any  company  or  individual    claiming  a  similar 
right,  but,  it  seems,  not  by  a  taxpayer.6 

Under  an  act 7  which  authorized  a  city  to  grant  a  right  to  construct  and 
maintain  water-works  therefor,  and  also  to  construct  and  maintain  pipes 

1  Terry  v.   New  York,  80  Bosw.  (N.  Y.)  5  Brenham  v.  Brenham  W.  Co.,  67  Tex. 
504;  Staples  v.  Dickson,  88  Me.  362^-        _542;  Long    v.  Duluth  (Minn.),  51    N..  W. 

2  Aldrich  v.  Tripp,   IT    R.    I.    141.     See       Rep^i^^w/  see  Bartholomew  v.  Aus- 
Topeka  W.  Co.  v.  Whiting,  50  Pac    Rep.       tin   (Tex.  177~S^C^C.A.),  85    Fed.   Rep. 
877  359  [1898].  — ~— ~ 

s  29  Amer.  &  Eng.  Ency.  Law,  n.  6  Grant  v.  Davenport,  36  la.  39 

*  Dodge   v.  Council  Bluffs,  57   la.  560;  v.  Council  Bluffs,  57  la.  560 

Peabody  v.  Westerly  W.-w.  Co.  (R.  I.),  7  Laws  Kan.  1891,  p.  126,  §  3. 

37  All.  Rep.  807. 


§  148.          OPERATIONS  PRELIMINARY   TO   CONSTRUCTION.  IOO 

under  the  streets  to  convey  water  to  other  cities,  and  which  provided  by 
another  section  that  no  grant  under  the  preceding  section  should  continue 
more  than  twenty  years,  that  any  such  grant  might  be  revoked  at  any  time 
after  ten  years,  and  that  the  city  might  acquire  the  water-works  property, 
it  was  held  that  the  first  section  contemplated  two  distinct  matters — 
construction  of  water- works  in  the  city,  and  laying  pipes  across  the  city; 
that  the  latter  section  related  only  to  the  former,  and  placed  no  limit  to  the 
duration  of  a  grant  under  the  latter;  hence  an  accepted  grant  under  the 
latter  could  not  be  revoked. 1  *  Exclusive  rights  granted  by  a  government 
in  which  the  public  are  interested  are  not  in  favor  with  the  courts,  and 
any  act  of  the  legislature  which  has  the  effect  to  impair  future  action  on 
the  part  of  the  legislature  or  city  council  will  be  construed  most  favorably 
to  the  state.2  If  any  ambiguity  exists,  or  if  there  be  any  reasonable  doubt 
as  to  the  power  granted,  or  as  to  whether  a  privilege  be  exclusive,  it  will 
be  construed  against  the  corporation  or  individual  claiming  such  exclusive 
privilege.  A  contract  granting  to  a  water  company  the  privilege  of  laying 
its  mains  in  the  streets,  with  a  covenant  by  the  town  to  pay  hydrant  rentals, 
is  to  be  strictly  construed  in  favor  of  the  public,  and  therefore  should  not  be 
taken  as  an  exclusive  grant.3  When  a  right  has  been  granted  and  the  grantee 
has  accepted  it  and  acted  upon  it,  it  constitutes  a  contract  protected  by  the 
federal  constitution  against  impairment  by  a  state  legislature.4 

An  exclusive  franchise  granted  to  a  corporation  to  furnish  water  to  a  city 
has  been  held  to  be  violated  by  a  grant  to  an  individual  in  the  city  of  a  right 
to  supply  his  own  premises  with  water  in  a  like  manner.5  A  grant  of  the 
exclusive  right  to  supply  a  municipality  from  a  designated  source  for  a  term 
of  years  was  held  not  impaired  by  grant  to  another  party  to  supply  it  with 
water  from  a  different  source.6 

148,  Quantity  and  Quality  of  Water-supply. — Under  a  contract  to  supply 
''well-settled  and  wholesome  water,"  a  city  need  not  accept  and  pay  for 
water  unless  it  is  of  the  quality  called  for  by  contract.  Occasional  use  by  a 
city  of  water  actually  furnished  does  not  necessarily  constitute  an  acceptance. 
There  must  be  a  fair  opportunity  for  examination  and  objection  before 
acceptance  can  be  inferred.7  To  recover  for  water  furnished,  a  water  company 
must  prove  substantial  compliance  with  its  contracts,  not  only  with  reference 
to  the  quantity  of  water  furnished,  but  as  to  the  quality.8 

1  National  W.  Co.  v.   Kansas  City  (C.  5  New   Orleans  Water  Co.   v.   Rivers, 
C.).  65  Fed.  Rep.  691.                                           115    U.  S.    674;    St.  Tammany  W.-w.    v. 

2  St.  Anthony  Falls  W.  P.  Co.  v.  Board,       New  Orleans  W.-w.,  120  U.  S.  64. 

1.68  U.  S.  349.  fi  Stein  v.  Bienville  W.  S.  Co.,  141  U.  S. 

8  Long  Island  Water-supply  Co.  v.  City  67. 

of  Brooklyn,  17  Sup.  Ct.  Rep.  718;  Wes-  7  Winfield  W.  Co.  v.  Winfield,  51  Kan. 

terly  W.-w    Co.  v.  Westerly  (C.  C.),  80  104. 

Fed.  Kep.  611.  8  See  Adrian  W.-w.  v.  Adrian,  64  Mich. 

4  29  Amer.  &  Eng.  Ency.  Law  13.     See  584;  State  Trust  Co.  v.  Duluth  (Minn.), 

Wait's  Engin.  and  Arch.  Jurisp.,  Sec.  144.  73  N.  W.  Rep.  249  [1897], 

*  See  Sees.  841-860,  infra. 


101  SUPPLY  OF   WATER  AND    ICE.  §  148. 

A  resolution  of  the  common  council  reciting  that  water-works  satisfy  the ' 
test  required  by  the  ordinance  does  not  prevent  the  city  that  has  granted  the 
privilege  for  a  specific  time  to  construct  water-works  and  furnish  water  from 
maintaining  an  action  to  rescind  the  contract,  the  works  having  proved 
inadequate,  and  the  water-supply  deficient  both  in  quality  and  quantity.1 
If,  however,  a  city  has  accepted  and  used  water  for  nearly  a  year  without 
objection,  and  the  water  appears  to  be  good  and  is  believed  to  be  good,  the 
city  cannot  then  claim  as  a  defense  that  the  water  was  not  good,  and  refuse 
to  pay  anything  for  it.2 

A  contract  for  water-supplies  entered  into  by  a  city  at  the  same  time 
an  invalid  franchise  was  granted  is  not  separable  from  the  grant,  but  both 
are  invalid ;  the  city,  however,  is  bound  to  pay  for  the  amount  of  water  actually 
received  and  used,  though  the  contract  is  invalid.3  The  invalidity  of  the 
exclusive  grant  by  a  city  of  the  right  to  use  its  streets  to  conduct  water  to  its 
inhabitants  is  no  defense  to  an  action  for  rents  the  city  promised  to  pay  for 
the  use  of  the  hydrants  after  the  works  have  been  constructed  according  to 
the  contract  and  have  been  accepted  by  the  city.4 

When  a  company  has  undertaken  to  furnish  a  city  with  filtered  water, 
equity  may  decree  a  specific  performance  of  the  contract,  as  an  action  for 
damages  would  not  afford  adequate  relief,  and  the  decree  and  forfeiture  of  the 
franchise  would  be  futile,  as  it  would  require  the  erection  of  new  works.5  It 
is  the  duty  of  a  city  in  its  corporate  capacity  to  enforce  the  terms  of  the 
contract  as  to  the  quality  of  the  water  to  be  supplied  not  only  to  the  city  but 
to  private  consumers.  Pure  water  has  been  held  to  be  water  that  is  whole- 
some and  ordinarily  pure,  and  not  pure  in  the  chemical  or  abstract  sense.6 

A  contract  for  artesian-well  water  is  not  satisfied  by  supplying  water  from 
other  sources,  although  it  may  be  equally  good  or  better.7 

Where  the  water  furnished  for  the  use  of  inhabitants  is  utterly  unfit  for 
domestic  use  or  for  use  by  domestic  animals,  and  is  so  destructive  to  pipes 
and  boiler-flues  as  to  be  unsafe  for  use  for  steam  purposes,  it  is  proper  to 
enjoin  the  company  from  collecting  water-rents  for  other  purposes  than  the 
extinguishing  of  fires  and  the  flushing  of  pipes  and  sewers.8 

The  fact  that  a  water  company,  under  its  contract  with  a  city,  has  the 

1  Galesburg    v.  Galesburg  W.  Co.,  34  6  Commissioners     v.    Towanda    W.-w. 
Fed.  Rep.  675;  Farmer's  L.  &  T.  Co.  v.  Co.  (Pa.),   15  All.   Rep.  440  [1888].     See 
Galesburg,  133  U.  S.  156.  Palestine  W.  &  P.  Co.  v.  Palestine  (Tex.), 

2  Burlington  Water-works  Co.  v.  Bur-  41    S.  W.   Rep.  659;  State    Trust   Co.    v. 
lington,  43  Kan.  275;  Wilson  v.  Charlotte  Duluth  (Minn.),  73  N.  W.  Rep.  249  [1897]. 
(N.  C.),  14  S.  E.  Rep.  961.  7  Foster  v.  Joliet,  27  Fed.  Rep    899. 

3  Nicholasville  W.  Co.  v.  Board  (Ky.),  8  Brymer    v.    Butler    Water    Co.    (Pa. 
36  S.  W.  Rep.  549;  Port  Jervis  W.  Co.  v.  Sup.),  33  All.  Rep.  707;  State  Trust  Co. 
Port  Jervis  (N.  Y.  App.),  45  N.  E.  Rep.  v.   Duluth   (Minn.),   73    N.  W.    Rep.   249 
388.  [1897];  Brace    v.    Pa.    Water   Co.,    7  Pa. 

4  Illinois  T.  &  Sav.  Bank  v.  Arkansas  Dist.  Rep.  71  [1897].     But  see  Wilson  v. 
City  (C.  C.  A.),  76  Fed.  Rep.  271.  Charlotte  (N.  C.),  14  S.  E.  Rep.  961;  and 

5  Burlington   v.  Burlington  W.  Co.,  86  Du  Bois  v.  Du  Bois  W.  Co.  (Pa.  Sup.), 
la.  266.  35  All.  Rep.  248. 


§  149-  OPERATIONS  PRELIMINARY    TO    CONSTRUCTION.  IO2 

right  in  case  of  fire  to  pump  unfiltered  water  through  its  pipes,  does  not 
excuse  it  from  its  failure  to  filter  the  water  at  other  times,  according  to  the 
contract.  The  fact  that  a  filter  put  in  by  the  company  was  adequate  wher 
its  works  were  constructed  does  not  excuse  it  from  putting  in  a  new  one  after 
the  old  one  has  become  inadequate  by  reason  of  the  city's  growth  and  the 
consequent  increase  in  the  demand  for  water.1 

A  contract  between  a  city  and  a  water  company  whereby  the  latt'er  agrees 
to  furnish  water  for  the  extinguishment  of  fires  does  not  give  a  private 
person  whose  property  is  burned  up  through  failure  to  furnish  water  any 
right  of  action  against  the  company,  since  he  is  no  party  to  the  contract.2 
This  is  so  even  though  the  company  has  expressly  agreed/  to  be  liable  for 
damages  for  injuries  caused  by  its  failing  to  furnish  water  adequate  to  ex- 
tinguish all  fires.3 

Under  a  contract  to  supply  water  in  sufficient  quantity  and  force  to  afford 
protection  against  fires,  the  pumps  to  be  capable  of  working  against  a  specified 
pressure  when  necessary  for  fire  protection,  and  to  be  so  arranged  as  to  work 
singly  or  together  as  required,  furnishing  direct  pressure,  etc.,  the  company 
is  bound  to  take  notice  of  such  fires  as  it  would  be  negligence  not  to  know 
of  in  view  of  its  opportunity  of  information  and  the  nature  of  its  business,  no 
fomal  demand  for  direct  pressure  being  necessary.  An  acceptance  by  the 
city  of  mains  smaller  than  the  maximum  size  specified  will  not  relieve  the 
company  from  its  obligation  to  supply  the  stipulated  quantity  and  force  of 
water. 4 

149.  Public  Character  o£  Water  Companies. — A  water  company  which  has 
been  authorized  by  the  state,  through  its  legislature,  to  take  water  in  which 
the  public  has  rights  and  interests,  and  which  has  been  authorized  to  occupy 
public  streets  and  ways,  is  a  ^on-public  corporation,5  and  the  operation  of  its 
water-works  is  a  public  one.  Every  inhabitant  of  the  town  along  the  lines  of 
its  pipes  can  obtain  water  if  he  desires  it.  The  fact  that  the  town  does  not 
use  the  water  in  its  public  buildings  or  to  supply  hydrants  does  not  alter  its 
public  character.6 

A  company  incorporated  for  the  purpose  of  supplying  a  city  and  its 
inhabitants  with  water,  and  which  by  ordinance  has  been  granted  the  privilege 
of  laying  its  pipes  through  the  streets,  with  no  conditions  imposed  except 
that  its  pipes  shall  be  laid  in  a  certain  manner,  and  that  it  shall  in  no  case 

1  Burlington  v.  Burlington  Water  Co.  Greensboro  W. -supply  Co.  (N.  C.),  32  S. 

(la.),  53  N.  W.  Rep.  246.  E.  Rep.  720  [1899]. 

0  Ilouee  ti    Houston  W.  Co.  (Tex.),  22  3  Howsmon    v.   Trenton   W.    Co.    (Mo. 

S.  W.   Rep.  277;  Mott  v.  Cherryvale  W.  Sup.),  24  S.  W.  Rep.  784. 

&    Mfg.   Co.   (Kan.),    28    Pac.  Rep.  989;  4  Light,  H.  &  W.  Co.  v.  Jackson  (Miss.), 

Bush    v.   Artesian   Hot  &  Cold   W.   Co.  19  So.  Rep.  771. 

(Idaho),  43   Pac.   Rep.  69;  Fitch  v.   Sey-  5City  W.  Co.   v.  State  (Tex.),  33  S.  W. 

mour  W.  Co.  (Ind.),  37  N.  E.  Rep.  982;  Rep.  259. 

Akron  W.  Co.  v.  Brownless,  10  Ohio  Cir.  6  Smith      v.     Inhabitants     of     Lincoln 

Ct.   R.  620.     But,  see   contra,   Garrell    v.  (Mass.),  49  N.  E.  Rep.  743  [1898]. 


103  SUPPLY   OF    WATER   AND    ICE.  §  1 5 1. 

charge  more  than  a  certain  amount  for  water,  must  furnish  water  to  any  person 
on  a  street  along  which  it  has  a  pipe,  though  that  pipe  was  laid  for  certain 
persons,  who  paid  therefor  under  an  agreement  that  if  it  was  used  for  supply- 
ing water  to  any  one  else,  it  should  be  paid  for  by  the  company.1 

The  question  whether  an  applicant  for  water  living  outside  the  city  is 
within  a  reasonable  distance  from  the  main  pipes  is  one  for  the  courts,  and 
cannot  be  determined  by  an  arbitrary  rule  adopted  by  one  party  alone.2 

150.  Rules  and  Regulations   of  Water  Company. — A  water   company 
must  conduct  its  business  in  a  manner  that  shall  be  equitable  and  just  to  its 
patrons.      It  cannot  adopt  and  enforce  unjust  and  unreasonable  rules  to  the 
detriment  of  the  public  or  to  individual  members  of  a  community.      There 
should  be  no  discrimination.      Parties  requiring  or  desiring  water  should  be 
governed  by  equitable  and  reasonable  rules  and  requirements. 

A  rule  that  permitted  the  water  commissioners  to  shut  off  the  supply  of 
water  to  a  building  when  the  occupant  refuses  to  pay,  at  the  rates  fixed  by 
their  rules,  for  water  used  in  excess  of  the  quantity  thereby  allowed,  has  been 
held  to  be  reasonable,  when  a  contract  exists  between  them  and  one  who 
has  been  made  aware  of  their  rules  by  seeing  the  same  printed  on  his  bills. 
An  injunction  cannot  be  issued  to  restrain  them  from  doing  so.3  A  rule 
which  requires  water-rates  to  be  paid  quarterly,  adds  a  penalty  of  five  per 
cent  in  case  of  default  of  payment  for  ten  days,  and  provides  that  after  a 
default  for  fifteen  days  the  water  shall  be  shut  off  from  the  premises,  has  been 
held  a  reasonable  regulation.4 

Some  states  give  liens  against  the  house  and  lot  for  water-rents  not  paid.5 
Regulations,  under  such  acts,  which  require  the  house-owner  to  pay  the  water- 
tax,  instead  of  the  tenant  who  uses  the  water,  have  been  held  reasonable.6 

151.  Regulation  of  Rates  or  Rents  for  Water. — The  legislature  may  by 
enactment,   or  cities,   if   so   empowered  by  it   (or  if  such  power  has  been 
reserved  by  a  city  in  consideration  of  a  right  of  way,  etc.),  may  by  ordinance 
fix  the  rates  to  be  charged  by  water  companies.7     Such  laws  or  ordinances 
have  been  held  not  unconstitutional  in  depriving  the  company  of  its  property 
without  due  process  of  law,  if  the  rates  fixed  be  reasonable  and  allow  a  just 
compensation  which  may  be  inquired  into  by  the  court.8 

When  the  rates  have  been  fixed  by  the  governing  body  of  a  municipality, 
it  is  within  the  province  of  the  courts  to  review  such  action  to  the  extent,  at 

1  Haugen  v.  Albina  L.  &  W.Co.  (Oreg.),       243. 

28  Pac.  Rep.  244.  6  Kelsey  v.  Board  Marquette  (Mich.), 

2  West  Hartford  v.  Board  (Conn.),  36       71  N.  W.  Rep.  589. 

Atl.  Rep.  786.  7  San  Diego  W.  Co.  v.  San  Diego  (Gal  ), 

3  Brass  v,  Rathbone,  153  N.  Y.  435;  Al-       50  Pac.  Rep.  633,  693^1897];  Bancroft  v. 
toona  v.  Shellenberger,  6  Pa.   Dist.  Rep.       Wall.  (Com.  PI.),  6  Ohio  Dec.  22. 

544  [1897].  8San  Diego  W.  Co.  v.  San  Diego  (Cal.). 

4Tacoma    Hotel    Co.   v.    Tacoma  L.   &  50   Pac.    Rep.    633;    Shaw  v.    San    Diego 

W.  Co.  (Wash.),  28  Pac.  Rep.  516.  W.  Co.  (Cal.),  50  Pac.   Rep.  6q^;  Brymer 

5  Laws  of    Pennsylvania,   Act  May  22,  v.  Butler  W.  Co.  (Pa.),  36  Atl.  Rep.  249. 
1889;    Laws   of   Michigan  1869,   Act  No. 


§  l6l.          OPERATIONS  PRELIMINARY    TO    CONSTRUCTION.  1 04 

least,  of  ascertaining  whether  the  rates  so  fixed  will  furnish  some  reward  for 
the  property  used  and  the  services  furnished.1  However,  an  act  that  gives  a 
court  visitorial  powers  as  to  water  companies,  and  provides  that  any  customer 
may  complain  by  petition  of  the  charges  for  water,  and  which  authorizes  the 
court  to  determine  the  reasonableness  of  the  charges  and  decree  that  they  be 
decreased,  does  not  give  the  court  jurisdiction  to  prepare  a  general  tariff  of 
water-rates,  and  require  companies  to  furnish  water  at  such  rates.2 

On  an  issue  as  to  the  reasonableness  of  water-rates  established  by 
ordinance,  the  items  of  necessary  expenditure  by  the  water  company  should 
not  include  interest  on  the  company's  indebtedness,  nor  the  sum  the  plant 
will  depreciate  annually,  aside  from  the  sum  requisite  for  its  maintenance  and 
repairs.  The  value  of  the  property  which  is  necessarily  used  in  furnishing 
the  water  is  the  basis  for  determining  the  reasonableness  of  rates,  and  not  its 
liabilities.  Their  reasonableness  cannot  be  determined  in  the  absence  of 
evidence  of  such  value.3 

The  power  of  a  water  company,  under  its  charter,  to  establish  prices  and 
rents  to  be  paid  for  water,  subject  to  the  control  of  the  legislature,  does  not 
deprive  the  court  of  its  jurisdiction  to  adjudicate  between  it  and  a  taker  of 
water  as  to  the  reasonableness  of  a  regulation.  A  regulation  of  a  water  com~ 
pany  requiring  takers  of  water  to  pay  rent  for  the  whole  year,  whether  they 
actually  use  it  for  that  length  of  time  or  not,  and  to  make  payment  yearly  in 
.advance,  without  special  agreement,  is  unreasonable  and  not  binding.4 

Violation  of  an  injunction  to  restrain  enforcement  of  unreasonable  rules 
by  a  water  company  does  not  involve  forfeiture  of  franchise,  but  a  proceeding 
in  contempt  of  court  against  the  proper  officer  or  employee  of  the  company.5 

If  a  person  would  avail  himself  of  the  unreasonableness  of  rules  regulating 
the  supplying  of  water,  he  should  complain  to  the  company  of  them.6 

161.  Ice  and  the  Ice  Industry, — In  connection  with  the  appropriation  of 
water  from  watercourses  to  the  many  domestic  and  industrial  uses  to  which  it 
is  put,  not  the  least  important  is  that  of  the  appropriation  of  ice.  It  is  less 
than  a  century  (1805)  since  ice  became  a  marketable  product,  when  a  Boston 
merchant  named  Tudor  first  conceived  the  idea  of  dealing  in  ice.  In  a  few 
years  the  ice  business  had  grown  to  such  proportions  that  it  was  imported  to 
foreign  countries,  American  ice  in  1833  having  been  transported  as  far  as 
Calcutta.  It  is  estimated  in  the  Encyclopaedia  Britannica  (vol.  12,  p.  614) 
that  in  America  more  than  two  million  tons  of  ice  are  annually  harvested  and 
stored  by  companies  to  supply  the  middle  states.  The  city  of  "New  York  is 
said  to  consume  over  five  hundred  thousand  tons  per  year.  Large  quantities 

1  San  Diego  W.  Co.  v.  San  Diego,  supra.       472. 

2  Brymer  v.   Butler  W.  Co.  (Pa.  Sup.),  5  Newark  v.  Newark  W.  Co.,  4  Ohio  N. 
36  All.  Rep.  249.                                                     P.  34i  [1897]- 

3Redlands     Water     Co.    v.     Redlands  6  Thomas  v.   Peterson  (Tex.),  24  S.  W. 

(CaL),  53  Pac.  Rep.  843  [1898].  Rep.  1125. 

4Rockland  W.   Co.  v.   Adams,  84  Me. 


105  SUPPLY   OF    WATER   AND    ICE.  §  163. 

of  ice  are  also  produced  by  artificial  means  by  the  evaporation  of  ammonia 
and  other  kindred  processes.  It  is  believed  that,  with  the  increased  growth 
of  cities  and  the  many  new  uses  and  comforts  obtained  from  ice,  at  the 
present  day  the  quantities  consumed  are  much  larger. 

162.  Character  of  Property  in  Ice. — Ice,  as  the  term  is  used,  is  water 
congealed,   a  solid,   brittle  substance  formed  by  the   freezing  of  waters  by 
abstracting  the  heat  necessary  to  preserve  its  fluidity.     In  water  it  has  been 
shown    that    riparian    owners    have    a    limited   and    reasonable   use;    in    the 
appropriation    of    it    they  must    consider    the  wants    and    rights    of    lower 
riparian  owners,  being  protected  in  the  same  manner  from  the  extravagant 
use  or  wants  of  upper  riparian  owners.      Water,  being  mobile  in  character,  is 
not  easily  confined  nor  preserved.     When  this  movable,  wandering  substance 
is  congealed  and  becomes  attached  to  the  soil,  it,  like  any  other  accession  or 
accretion  thereto,  becomes  a  part  of  the  realty.     It  does  not  differ  materially 
from  alluvion  or  accretion,  which  is  but  the  imperceptible  deposit  or  addi- 
tions of  earth,    sand,  gravel,    and  other  matters  made  by  rivers,    flood,  and 
other  causes  upon  the  land.1     As  Patterson,  an  English  justice,  has  said  in 
discussing  the  subject  of  accretions,  "  I  am,  however,  of  the  opinion  that 
where  anything  in  the  nature  of  soil  is  blown  or  lodged  upon  a  man's  close, 
it  is  part  of  the  close,  and  he  has  a  right  to  it  against  all  the  world.     If 
water  in  a  pool  upon  one's  land  be  a  part  of  the  realty  because  fixed  and 
stationary,  why  is  it  not  when  congealed  over  the  bed  of  a  stream  to  the 
thread  of  which  his  title  extends  ?     True,  nature  will  in  time,  if  it  be  not 
removed,  again  change  the  ice  to  fluid,  and  it  will  pass  away  from  the  posses- 
sion ;  but  not  more  certainly  than  the  sweeping  winds  and  the  rising  tide  will 
sweep  away  the  shifting  sands. ' ' 2 

163,  Eeal  or  Personal  Property  in  Ice. — Ice  when  formed  upon  private 
waters  or  unnavigable  streams  has  been  held  to  be  real  estate,  and  the  property 
of  the  owner  of  the   soil   over  which  it  is  formed.3     It  has  been  held  an 
indictable  offense  to  remove  ice  without  the  consent  of  the  owner  of  the  land 
over  which  it  is  formed.4 

If  ice  be  real  property,  the  question  arises  whether  it  may  be  sold  or 
rights  granted  to  appropriate  it  without  a  deed,  duly  acknowledged  and 
recorded,  the  same  as  is  necessary  in  the  conveyance  of  land.  In  general, 
every  easement  being  an  interest  therein  can  be  acquired  only  by  grant  or 
what  is  deemed  to  be  evidence  of  an  original  grant.  In  this  class  of  easements 
are  embraced  the  right  of  one  to  take  water,  the  soil,  or  parts  of  the  soil  of 
another,  if  such  rights  be  of  the  freehold  or  inheritable  character.  In  the 
matter  of  water,  the  owner  of  a  stream  may  grant  a  certain  quantity  of  water 

1  Angel  on  Watercourses,  §  53;  Patter-  3 State  v.  Pottmeyer,  33  Ind.  402;  Wash- 
son,  Justice,   in  Blewett  v.   Tregonning,       ington  Ice  Co.  v.  Shortall,  101  111.  46. 

3  Al.  &  El.  554.  *  State  v,  Pottmeyer,  33  Ind.  402;  Bates 

2  Blewett   v.  Tregonning,  3  Al.  &  El.       v.  State,  31  Ind.  72. 
554- 


§  164.          OPERATIONS  PRELIMINARY    TO    CONSTRUCTION.  IO6 

to  be  taken  out  of  it  or  a  certain  amount  of  water-power,  measured  and 
ascertained. l 

In  Michigan  ice  has  been  held  to  be  of  such  an  ephemeral  character  as 
to  render  it  incapable  of  any  permanent  or  beneficial  use  as  part  of  the  soil, 
and  that  the  sale  of  ice  actually  formed  was  a  sale  of  personal  property.2 
When  cut  and  removed  from  where  it  was  formed  it  is  personal  property  in 
any  case.  The  Michigan  law  is  without  doubt  the  exception  to  the  general 
rule  that  ice  formed  upon  a  stream  is  real  property.  Ice  cut  and  packed  in 
an  ice-house  .ias  been  held  the  subject  of  larceny.3 

164.  Ice  Formed  on  Navigable  Streams, — Ice  formed  upon  navigable 
streams  does  not  as  a  rule  belong  to  the  adjacent  owners  of  the  land:  cer- 
tainly not  in  those  states  where  such  streams  are  held  to  be  public  property. 
The  ice  is  held  to  belong  to  him  who  first  appropriates  it.4 

Ice  formed  upon  public  waters  is  public  property,  and  the  person  who 
first  takes  possession  of  it  is  entitled  to  it  without  interference.  If  disturbed, 
he  may  maintain  an  action  of  trespass  against  the  parties  who  interfere  with 
him.  After  ice-fields  have  been  staked  and  fenced  and  scraped  they  have  been 
held  to  become  the  property  of  the  appropriator,  and  that  an  action  would  lie 
against  any  one  who  attempted  to  disturb  the  possession  thereof. 5  When  such 
an  ice-field  was  injured  by  running  a  steamer  back  and  forth  unnecessarily 
near  the  boom  inclosing  it,  it  was  held  that  an  action  for  damages  would  lie.6 
One  who  is  merely  the  owner  of  an  easement  in  water  has  not  the  right  to  the 
ice  formed  on  that  water.7  An  appropriation  of  ice  on  a  navigable  stream  is 
made  by  surveying,  marking,  and  staking  the  ice  which  has  not  been  appro- 
priated by  others,  and  by  taking  such  steps  as  are  necessary  to  preserve  it. 
Such  acts  give  sufficient  possession  to  support  an  action  of  trespass.8  At 
common  law  navigable  waters  are  those  in  which  the  tide  ebbed  and  flowed, 
and  their  ownership  was  limited  to  the  high-water  mark,  except  in  those  states 
where  the  law  has  been  modified  by  statute  or  custom,  as  in  the  states  of 
Maine  and  Massachusetts.9 

In  rivers  above  the  ebb  and  flow  of  the  tide,  but  navigable  in  fact,  the 
authorities  are  not  agreed.  At  common  law  a  riparian  owner  had  title  in  a 
stream  to  the  center  thereof,  and  this  rule  has  been  held  to  apply  to  such 
rivers  as  the  Mississippi,  Detroit,  Delaware,  Connecticut,  Milwaukee,  Sault 
Ste.  Marie,  Saginaw,  Sandusky,  and  others.10  In  some  states,  as  Iowa,  North 

1  See    Washburn's    Real     Property    (3d  6  People's  Ice  Co.  v.  Steamer,  44  Mich. 
Ed.),  ch.  4,  §  3.    See  Piper  v.  Connelly,       229. 

108  111.  646  [1884] ;  109  111.  672;  115   111.  7  Brookville,    etc.,    v.    Butler,  91    Ind. 

195;  120  111.  522.  134.     But  see,  contra,  Mill  River,  etc.,  Co. 

2  Higgins  v.  Kusterer    41  Mich.  318.  v.  Smith,  34  Conn.   462;  Myer  v.  Whitta- 

3  Ward  v.  People  (N.  Y.),  6  Hill  140.  ker  (N.  Y.),  55  How.  Pr.  376. 

4  Briggs     v.     Knickerbocker     Ice    Co.  8Hickey   v.  Hazard,   3    Mo.   App.   480; 
(Sup.),  32  N.  Y.  Supp.  95.  Wood  v.  Fowler,  26  Kan.  682. 

5  Woodman    v.     Pitman,     79    Me.     456.  9  Cooley  on  Torts  321. 

And  see  People's  Ice  Co.  v.   Steamer,   44  109  Amer.  &  Eng.  Ency.  Law  858,  and 

Mich.  229.  cases  cited. 


IO/  SUPPLY  OF    WATER   AND    ICE.  §  l66. 

Carolina,  Missouri,  and  Pennsylvania,  the  soil  under  navigable  rivers,  though 
not  subject  to  ebb  and  flow  of  the  tide,  does  not  belong  to  the  riparian  owners, 
but  to  the  state.1  The  United  States  Supreme  Court  has  held  to  the  same 
effect.2 

If  the  bed  of  a  stream  of  water,  navigable  or  unnavigable,  belongs  to  the 
riparian  owner,  the  ice  formed  thereover  belongs  to  him — and  it  may  not  be 
removed  by  another  without  his  being  liable  in  trespass,  even  though  the 
removal  of  the  ice  improve  the  navigation.  The  ice  of  private  fresh-water 
Teams,  the  soil  beneath  which  belongs  exclusively  to  the  riparian  owner,  is  his, 
and  he  may  enjoin  others  from  removing  it,  or  maintain  an  action  of  trespass 
against  them.3  The  owner  of  the  land  on  the  side  of  a  meandered  stream  has 
the  right  to  cut  all  the  ice  which  forms  on  that  portion  of  the  stream  owned 
by  him,  and  he  may  lease  the  privilege  to  another.4 

Sometimes  the  right  to  take  ice  from  navigable  streams  is  made  the 
subject  of  statute  law.  Under  Laws  of  New  York  1879  chap.  388,  riparian 
owners  on  the  Hudson  River  have  title  to  the  ice  to  the  center  of  the  channel, 
and  it  is  provided  that  any  person  trespassing  on  or  taking  the  same  shall 
be  liable  for  the  value  of  the  ice  taken  or  for  injury  done  to  it.  This,  how- 
ever, does  not  authorize  an  injunction  against  cutting  or  interfering  with  such 
ice,  as  the  remedy  given  by  the  statute  is  exclusive.5 

165,  Ice  Formed  on  Lakes  and  Ponds. — The  right  to  gather  ice  upon 
natural  lakes  and  ponds  that  are  public  waters  is  a  common  right.6     The 
owner  or  lessee  of  land,  including  an  ice-house,  upon  the  shore  of  a  lake  or 
pond  has  the  same  right  as  others  to  cut  and  take  ice,  but  he  cannot  exclude 
the   public  by  occupying  any  particular  part  of  the  land.7      When  a    lessee 
has  marked  and  erected  stakes  he  does  not  acquire  such  a  right  to  the  ice 
thus  inclosed   that  he  can  exclude  an  ice  company  which,  previous  to  the 
formation  of  the  ice,  had  removed  the  lily-pads,  scraped  off  the  snow,  bored 
holes  in  the  ice.  and  let  off  the  surface-water.8 

166.  Ice   Formed   on    Artificial   Ponds. — Ice  formed  upon  an  artificial 
pond   in   which  another   than  the  riparian  owner  has  a  right  to  the  water 
belongs  primarily  to  the  riparian  owner  who  owns  the  soil  beneath  the  pond. 
He  must  not  take  ice  in  such  quantities  as  will  deprive  the  mill-owner  of  so 
much  water  as  he  is  entitled  to  for  the  use  of  his  mill.9     If  a  mill-owner's 

J9  Amer.   &  Eng.  Ency.  Law  858,  and  (Sup.),  32  N.  Y.  Supp.  95. 

cases  cited.  69  Amer.  &  Eng.  Ency.  Law  859.  citing 

2  Barney  v.  Keokuk,  94  U.  S.  324;  Rail-  Massachusetts   cases;    12    Amer.    &    Eng. 
road  Co.  v.  Shurmeir,  7  Wall.  (U.  S.)272.  Ency.  Law  626;  Barrett  v.  Rockport  Ice 

3  Mills  River,  etc.,  v.  Smith,  34  Conn.  Co.,  84  Me.  155. 

462;  State    v.    Pottmeyer,     30    Ind.     287;  7  Hittinger   v.    Ames,    121    Mass.    539, 

Lorman  v.  Benson,  8  Mich.   18;  Paine  v.  Rowell  v.  Doyle,  131  Mass.  474. 

Woods,  108  Mass.  160;  Higgins  z/.    Kus-  8  Barrett  v.   Rockport  Ice  Co.,  84  Me. 

terer,  41  Mich.  318.  155- 

4  Oliver  v.  Olmstead  (Mich.),  70  N.  W.  9  Eidemiller  Ice  Co.   v.  Guthrie  (Neb.),  . 
Rep.  1036.  60    N.    W.    Rep.   717;  12  Amer.    &    Eng. 

5Briggs     v.     Knickerbocker     Ice     Co.       Ency.  Law  626. 


§  l6/.          OPERATIONS  PRELIMINARY    TO    CONSTRUCTION.  IO8 

flowage  or  water-power  is  not  lessened  materially,  he  cannot  sue  a  riparian 
owner  for  the  removal  of  ice  from  the  pond.1  There  are  numerous  cases 
which  hold  that  the  owner  of  an  artificial  mill-pond  is  entitled  to  the  water 
of  the  pond,  and  is  also  entitled  to  the  ice  which  is  formed  thereon,  even  as 
against  the  riparian  owner.  This,  however,  is  but  a  repetition  of  what  has 
just  been  said,  and  is  no  doubt  true  if  the  appropriation  of  the  ice  by  the 
riparian  owner  materially  diminishes  or  injures  the  water-power  of  the  mill.2 
An  owner  of  a  mill,  and  a  dam  subservient  thereto,  who  has  wantonly  drawn 
the  water  from  a  pond  and  thus  injured  the  ice  privileges  of  the  owner  of  land 
bordering  on  the  pond,  was  held  liable  in  damages  to  such  owner.3 

167.  Owners  of  Water  and  Ice  are  the  Same. — In  every  case  the  right  to 
take  ice  from  a  stream  or  body  of  water  depends  solely  upon,  and  grows  out 
of,  the  title  to  the  bed  of  the  stream  and  such  right  to  the  use  of  the  waters  as 
results  therefrom.      This  is  well  settled  by  authority  as  well  as  by  practice.4 
In  some  cases  it  is  held  that  the  title  to  the  ice  is  in  the  person  who  was 
entitled  to  the  use  of  the  water  before  it  was  congealed.5     The  owner  of  a 
dam  has  no  right  unreasonably  to  detain  the  water,  for  the  same  reason  that  he 
has  no  right  wantonly  to  accelerate  it  to  the  injury  of  the  owner  above  or 
below.6 

The  property  in  ice  on  a  pond  or  a  canal  depends  upon  the  same  rules  and 
principles.  If  the  state  has  appropriated  the  fee  of  the  land  for  the  construc- 
tion of  canals,  the  former  owner  has  no  exclusive  right  to  take  ice  therefrom.  7 
If  the  state  has  condemned  and  taken  only  a  right  of  way,  making  it  a 
servitude  of  the  property  of  the  original  owner,  the  owner  of  the  fee  may  take 
ice  when  its  removal  will  not  interfere  with  navigation  or  the  use  of  the  water 
for  hydraulic  or  any  other  purposes  for  which  it  was  taken.8 

168.  Travel   upon   Ice — Rights   of  Public. — In   navigable   streams  the 
public  has  a  common  right  of  travel,  and  this  extends  to  driving,  yachting, 
and  skating  over  the  ice  of  such  stream.      Few  cases  have  been  decided  by 
the  courts  upon  this  question,  but  there  can  be  no  doubt  of  the  common-law 
right  of  the  public  to  travel  upon  the  ice  of  a  navigable  stream.     Persons  and 
companies  engaged  in  the  cutting  and  appropriating  of  ice  must  so  protect 
their  fields  and  the  openings  so  made  as  not  to  expose  to  danger  persons  who 

1Hazelton  v.  Webster  (Sup.),  46  N.  Y.  4  Gould   on  Waters,   §§  191    and    336; 

Supp.     922     [1897];     Reysen     v.     Roate  Piper  v.  Connolly,  108  111.  646;  Ham  v. 

(Wis.),    66    N.    W.  Rep.    599;    Scarce    v.  Salem,  100  Mass.  350;  Paine  v.  Woods, 

Gardner  (Pa.),  13  Atl.  Rep.  835  [1888].  108  Mass.  172. 

2  Brookville  &  M.,  etc.,  Co.   v.  Butler,  5 Elliot  v.  Fitchburg  R.  Co.  (Mass.),  10 

91  Ind.  134;  State  v.  Pottmeyer,  33  Ind.  Cush.  191;  Cummings  v.  Barrett  (Mass.), 

402;  Edgerton  v.  Hoff,  26  Ind.  35;  Julian  10  Cush.  186. 

v.  Woodsmall,  82  Ind.  568;  Goodlittle  v.  6  Phillips  v.  Sherman,  64  Me.  171.    See 

Alker,   i    Burr.   133;  Marshall  v.   Peters  Frye  v.  Moore,  53  Me.  583. 

(N.  Y.),  12  How.  Pr.  218;  Dodger/.  Berry  7Cromie  v.  Board,  71  Ind.  208;  Indian- 

(N.  Y.),  25  Alb.  L.  Jour.  303.  apolis,    etc.,    v.    Burkhart,    41   Ind.  364. 

3Eidemiller  Ice  Co.  v.   Guthrie  (Neb.),  And  set  Card,  v.  McCaleb,  69  111.  314. 

60  N.  W.  Rep.  717;  Stevens  v.  Kelley,  78  8  Edgerton  v.  Hoff,  26  Ind.  35. 
Me.  445. 


IO9  SUPPLY  OF    WATER   AND    ICE.  §  169, 

venture  upon  the  ice.  If  a  traveler  is  injured  by  an  unguarded  hole  cut  in 
the  ice,  without  negligence  on  his  part,  he  may  recover  from  the  persons  who. 
are  responsible  for  the  unguarded  condition  of  the  hole.1 

Frozen,  navigable  rivers  are  public  highways,  and  a  traveler  ordinarily 
has  the  right  of  passage  as  necessarily  incident  to  the  reasonable  enjoyment 
of  his  right,  but  it  must  be  exercised  in  common  with  such  other  uses  as  the 
frozen  condition  and  surface  of  the  river  are  adapted  to.  One  such  use  is  the 
harvesting  of  ice,  a  use  that  may  impede  travel.  Both  are  common-law 
rights  and  both  must  be  equally  exercised,  but  both  cannot  be  enjoyed  at  the 
same  spot  at  the  same  time.  It  is  reasonable,  therefore,  to  give  the  choice  to- 
public  benefit,  and  to  restrict  their  uses  to  the  narrower  compass,  but  neither 
can  monopolize  the  whole  right  to  the  destruction  of  all  other  rights. 

If  the  public  has  appropriated  a  particular  part  of  the  ice  of  a  stream  or 
pond,  and  has  worn  a  well-beaten  track  upon  the  same,  it  would  be 
unreasonable  for  the  ice-gatherer  to  obstruct  such  track;  and  if  the  ice-gatherer 
has  appropriated  and  marked  his  ice-field,  leaving  the  traveler  room  for 
passage,  it  would  be  unreasonable  and  unjust  for  the  traveler  to  go  upon  it 
and  defile  it.  Both  uses  of  the  ice  are  lawful,  but  neither  may  wholly  exclude 
the  other.  Courts  may  declare  the  relative  rights  of  persons,  but  they  cannot 
extinguish  them.2 

169.  Measure  of  Damages  for  Taking  Ice. — The  measure  of  damages  for 
cutting  and  removing  ice  has  been  held  to  be  the  value  of  the  ice  as  soon  as 
it  exists  as  a  chattel;  that  is,  as  soon  as  it  has  been  scraped,  plowed,  cut, 
severed,  and  is  ready  for  removal,3  and  not  with  reference  to  the  particular 
situation  or  convenience  of  one  person  or  another.4  The  damages  for 
destroying  wantonly  a  field  of  forming  ice  is  the  profit  that  would  have  been 
made,  deducting  the  expense  of  storing  it  from  the  market  price.5 

When  riparian  estates  are  taken  away  and  the  water  rights  pertaining  thereto 
are  destroyed,  the  value  of  the  ice  privileges  connected  therewith  may  be 
considered  as  an  element  of  damages.6 

1  Woodman    v.     Pitman,    79    Me.    456;  5  People's  Ice  Co.  v.  Steamer,  44  Mich. 
French  v.  Camp,  18  Me.  433.  229. 

2  Woodman  v.   Pitman,  79  Me.  456.  6  Ham  v.  Salem,  100  Mass.  350;  Paine 

3  Washington   Ice  Co.  v.   Shortall,   101  v.    Woods,    108    Mass.     173;    Cromie    v. 
111.  46.  Board,  71  Ind.  208;  Card  v.  McCaleb,  69 

*  Piper  v.  Connolly,  108  111.  646.  111.    314.      And  see   Indianapolis  Water- 

works v.  Burkhart,  41  Ind.  364. 


CHAPTER   XL 

i 

WATER.     RIGHTS   IN   REGARD   TO   SURFACE-WATERS. 

171.  Surface-waters   Defined. — "  Surface-waters  are  waters  of  a   casual 
and  vagrant  character  which  ooze  through  the  soil  or  diffuse  or  lose  them- 
selves over  the  surface,  following  no  definite  course."     Though  usual  and 
natural,  flowing  in  a  known  direction  and  course,  they  have  nevertheless  no 
banks  or  channels.     They  include  waters  which  are  diffused  over  the  surface 
of  the  ground,  and  are  derived  from  rains,   melting  snows,  occasional  out- 
bursts of  water  which  in  time  of  freshet  descend  from  the  mountains  and 
inundate  the  country,  and  the  moisture  of  wet,  spongy,  springy,  and  boggy 
grounds.     When  surface-waters  reach  and  become  a  part  of  a  natural  water- 
course they  lose  their  character  as  surface-waters,  and  then  come  under  the 
rules  governing  watercourses. l 

Surface-waters  have  been  described  as  water  which  comes  from  no  one 
knows  exactly  whence,  and  flows  no  one  knows  exactly  how,  through  or  under 
ground  or  on  the  surface,  unconfined  in  any  channel,  either  as  rainfall  which 
may  fall  from  day  to  day,  or  springs  that  come  from  beneath  the  surface,  in  a 
direction  which  no  one  knows.2  Natural  depressions  in  the  land  through 
which  surface-waters  from  adjoining  lands  naturally  flow  are  not  water- 
courses. 

172.  Surface-waters  Distinguished  from  Watercourses. — The  determina- 
tion of  the  character  of  waters  is  often  important,  as  the  laws  governing  their 
use,  disposition,  and  appropriation  often  depend  upon  their  character.     This 
is  especially  true  of  surface-waters,  as  distinguished  from  watercourses,  in  the 
liability  of  landowners  for  damages  due  to  their  action  or  to  their  drainage, 
diversion,  and  detention,  as  will  be  seen  in  the  sections  which  follow. 

A  slough  or  bayou  extending  at  right  angles  to  the  river,  and  about  one 
hundred  and  fifty  feet  wide  at  the  river,  having  a  well-defined  channel,  and 
banks  tor  a  distance  of  trom  tour  to  six  hundred  feet  and  no  more,  not  shown 
to  be  formed  by  any  living  springs,  but  in  high  waters  to  have  an  outlet  into 
the  river  through  its  defined  channel  for  the  distance  stated,  and  spreading 
through  forests  and  over  the  surrounding  country  without  any  defined 

1  24  Amer.  &  Eng.  Ency.  Law  896,  and  Gd.  June.   C.  Co    v.  Shugar,  L.  R.  fc 

cases  cited.  Ch.  486. 

no 


Ill  RIGHTS  IN  REGARD    TO   SURFACE-WATERS.  §  \J2a. 

channel,  was  held  not  to  be  a  natural  watercourse,  and  the  construction  of  a 
solid  embankment  across  it  at  its  junction  with  the  river  was  not  to  be 
enjoined.1 

Water  gathered  in  a  reservoir  formed  by  the  bed  of  a  creek  and  the  con- 
struction of  streets  across  it,  where  the  bed  of  the  creek  has  long  since  been 
abandoned  and  streets,  roads,  railroad-tracks,  and  buildings  have  been  con- 
structed across  it  in  places,  is  to  be  regarded  as  surface-water.2 

A  lake  formed  by  several  streams  whose  waters  in  times  of  flood  find  an 
outlet  by  percolation  through  a  bed  of  gravel  so  rapidly  that  there  is  an 
apparent  current  towards  the  gravel-bed  is  a  watercourse,  and  not  merely 
surface-water. 3  Water  which  is  mere  surface-water  from  rain  or  melted  snow, 
flowing  in  hollows  and  ravines  of  land,  which  are  at  no  time  destitute  of 
water,  is  usually  held  not  a  watercourse.  If,  however,  such  ravines  and 
gorges  have  a  well-defined  channel  which  the  water  has  made  for  itself,  and 
which  is  the  accustomed  channel  through  which  it  flows,  such  channel  is  held 
a  watercourse.1  Whether  or  not  such  a  pass  for  water  is  a  watercourse  is  a 
question  to  be  determined  by  a  jury  under  proper  instructions  from  the 
court.4 

Where  the  law  provided  that  an  occupier  of  any  land  covered  with  water 
shall  be  assessed  at  one  fourth  of  'the  amount  to  be  imposed  on  other 
property,  it  was  held  that  canals  and  filter-beds,  the  latter  supported  on 
brick  arches  and  covered  with  water  at  times,  were  lands  covered  with  water.5 

172a,  Watercourse  Defined  and  Distinguished. — A  watercourse  is  a 
stream  of  water  flowing  in  a  defined  channel,  having  a  bed  and  sides  or 
tanks,  and  discharging  itself  into  some  other  stream  or  body  of  water. 
According  to  Mr.  Angel  in  his  book  on  Watercourses,6  a  watercourse  consists 
of  a  bed,  banks,  and  water,  though  the  water  need  not  flow  continually, 
as  there  are  many  watercourses  which  are  sometimes  dry.  He  distinguishes 
between  regular  flowing  streams  of  water  which  at  certain  seasons  are  dried 
up,  and  waters  which  in  times  of  freshets  or  as  melted  ice  descend  from 
the  hills  and  inundate  the  country.  To  maintain  a  right  to  a  watercourse  or 
brook  it  must  appear  that  the  water  usually  flows  in  a  certain  direction  and 
by  a  regular  channel  with  sides  or  banks.  It  need  not  flow  continually, 
and  may  at  times  be  dried  up.  It  must  have  a  well-defined  and  substantial 
existence.  The  mere  right  of  drainage  over  the  general  surface  of  land 
is  very  different  from  the  right  of  the  flow  of  a  stream  or  brook.7 

The  word   "watercourse"  is  applied  to  all  the  inland  waters  which  are 

1  St.  Louis,  etc.,  R.  Co.  v.  Schneider,  5  East    London    W.-w.    Co.    v.  Leyton 
30  Mo.  App.  620.  Sewer  Auth.   (Eng.),    L.  R.   6  Q.  B.  669 

2  Kansas  City  v.  Swope,  79  Mo.  446.  [1871]. 

3  Hebron    G.    Rd.    Co.   v.    Harvey,   90  6  Angel  on  Watercourses,  7th  ed.,  §  4. 
Ind.  192.  7  Hoyt    v.    Hudson,    27    Wis.    656;    28 

*  Eulri'ch  v.  Richter,  37  Wis.  230.  Amer.  &  Eng.  Ency.  Law  944,  and  case* 

cited. 


§  1/20.         OPERATIONS  PRELIMINARY   TO    CONSTRUCTION.  112 

commonly  called  rivers,  brooks,  creeks,  rivulets,  etc.,  according  to  their 
magnitude.  As  defined  in  law,  "watercourse"  means  a  living  stream  with 
banks  and  channels,  not  necessarily  running  at  all  times,  but  coming  from 
more  permanent  sources  than  mere  surface-waters. l  A  river  is  a  considerable 
stream  of  water  with  a  current  of  its  own,  flowing  from  a  higher  level,  its 
source,  to  its  mouth.2  It  is  a  watercourse  from  the  point  where  the  water 
comes  to  the  surface  and  begins  to  flow  in  a  well-defined  channel  until  it 
mixes  with  the  water  of  the  sea,  lake,  or  other  body  of  water  into  which  it 
flows.3 

To  constitute  a  watercourse  it  is  not  necessary  that  there  should  be 
spring-water.4  But  where  water,  owing  to  hills  and  mountains,  accumulates 
in  large  quantities  from  rain  and  melting  snow,  and  at  regular  seasons 
descends  through  long  gullies  or  ravines,  carving  a  distinct  and  well-defined 
channel,  and  which  bears  unmistakable  signs  of  the  action  of  running  water, 
and  in  which  channels  the  stream  has  flowed  from  time  immemorial,  it  will 
be  considered  a  watercourse.5 

A  ditch  excavated  for  the  purpose  of  diverting  the  water  from  its  natural 
channel,  or  to  carry  it  from  low  lands  from  which  it  will  not  flow  in  conse- 
quence of  the  natural  formation  of  the  surrounding  land,  may  be  a  water- 
course.6 In  Wisconsin  it  has  been  held  that  surface  or  percolating  water 
gathered  into  a  ditch  and  led  away  does  not  make  a  watercourse.7 

A  body  of  water  five  miles  long  by  one  mile  wide,  fed  by  springs  which 
had  no  current  or  connection  with  any  other  stream  except  that,  during  a 
portion  of  the  year,  water  flowed  from  it  to  the  Illinois  River  by  way  of  a 
slough,  and  it  did  not  appear  whether  or  not  it  was  navigable,  was  held  a  lake 
or  pond,  and  that  therefore  in  Illinois  adjoining  owners  took  only  to  water's 
edge.8 

The  fact  that  a  stream  may  spread  out,  making  a  piece  of  marshy  ground 
where  the  flow  is  not  sufficient  to  break  the  turf,  does  not  destroy  its  character 
as  a  watercourse.9  If  there  be  characteristics  of  a  flowing  stream  with  visible 

1  Joliet,  etc.,    R.  Co.  v.    Healy,   94   111.  5  28  Amer.  &  Eng.  Ency.  Law  946,  and 
416;   Gillett    v.   Johnson,   30    Conn.    180;       cases  cited. 

Hill  v.  Cincinnati,  etc.,  Ry.  Co.  (Ind.),  6  Earl    v.    DeHart,    12    N.  J.    Eq.    280. 

'10  N.  E.    Rep.   410   [1887] ;  Morrisey  v.  See    McKinley   v.    Chosen    Freeholders, 

Chicago,  etc.,  Ry.  Co.  (Neb.),  56  N.  W.  29   N.  J.  Eq.  171;  Bowlsby   v.   Speer,   31 

Rep.  946;  Pyle  v.  Richards,  17  Neb.  180.  N.  J.  L.  351. 

2  The  Garden  City,  26  Fed.  Rep.  766.  7  Case    v.   Hoffman   (Wis.),   72    N.  W. 

3  Dudden  v.  Glutton  Union,  I  H.  &  N.  Rep.  390   [1897].     But  see  contra.  Cross 
627;    Jeffers    v.   Jeffers,    107    N.  Y.  651;  v.  Kitts  (Cal.),  22  The  Reptr.  361  [1886]. 
Hinkle  v.  Avery  (la.),  55  N.  W.  Rep.  77;  8  Trustees    v.   Schroll   (111.),   12    N.  E. 
Razzo  v.  Varni  (Cal.),  22  Pac.  Rep.  848;  Rep.  243  [1887]. 

New   York   C.  &  St.  L.  R.  Co.  v.  Speel-  9  Gillett    v.    Johnson,    30    Conn.    180; 

man  (Ind.  App.),  40  N.  E.  Rep.  541;  Hill  Hinkley  v.  Avery  (la.),  55   N.  W.  Rep. 

v.  Cincinnati,  etc.,  Ry.  Co.  (Ind.),   10  N.  77;  Mitchell  v.  Bain  (Ind.  Sup.),  42  N.  E. 

E.   Rep.  410   [1887];  Ne-Pee-Nauk    Club  Rep.    230;     Macomber    v.    Godfrey,    108 

v.  Wilson  (Wis.),  71  N.  W.  Rep.  661.  Mass.  219  [1871];  Rigney  v.  Tacoma  Lt. 

4  Kelly  v.   Dunning,  39  N.  J.  Eq.  482;  &  W.  Co.  (Wash.),  38  Pac.  Rep.  147. 
Eulrich  v.  Richter,  41  Wis.  320. 


113  RIGHTS  IN  REGARD    TO   SURFACE-WATERS. 

current,  it  is  a  watercourse; !  otherwise  it  is  not.2 

The  fact  that  a  stream  having  a  bed,  banks,  and  current  has  been 
deepened  artificially  for  drainage  purposes,  or  that  it  is  at  times  dry,  does  not 
deprive  it  of  the  character  of  a  watercourse.3  Depressions  in  the  ground  to 
which  surface-water  from  adjacent  land  finds  its  way  and  is  discharged  into 
some  natural  outlet,  are  not  watercourses.4  A  ravine  upon  which  grasses 
grow  and  hay  is  cut,  through  which  surface-water  is  discharged  during  a 
portion  of  the  year,  or  during  rains  or  when  snow  melts,  but  which  has  not  a 
Dank,  is  not  a  watercourse.5  A  small  stream  passing  through  a  city  in  an 
adverse  course,  collecting  foul  matter  from  dwellings  and  manufactories  and 
which  is  therefore  prejudicial  to  health  and  comfort,  is  not  a  natural  water- 
course in  which  people  have  such  rights  as  to  prevent  the  city  from  changing 
the  course  of  such  stream  and  conducting  it  in  a  covered  culvert.6  A  sluice- 
way between  the  piers  of  a  bridge  extending  above,  below,  and  between  the 
filling  by  which  flats  have  been  reclaimed,  but  which  has  no  water  in  it  at 
low  tide,  is  not  a  watercourse  which  can  be  the  basis  of  riparian  rights.7 

A  stream  of  water  which  is  not  susceptible  of  use  as  a  highway  in  its 
natural  state,  is  absolutely  private  and,  though  made  capable  of  floating  com- 
mercial products  by  artificial  means,  is  not  a  subject  of  public  use.8  *  If 
such  streams  are  sufficiently  large  to  be  of  public  use  in  transporting  property, 
they  are  highways  over  which  the  public  has  a  common  right.9 

If  the  water  takes  a  defined  course,  as  from  a  spring,  and  makes  a  defined 
channel,  it  is  a  watercourse,  whatever  its  size  or  length.10  A  creek  one-half 
mile  long,  with  a  defined  bed  and  banks  over  which  water  is  conveyed  and 
discharged  into  lowlands  adjacent  to  the  running  stream,  is  a  watercourse, 
though  it  be  dry  most  of  the  time.11  However  small,  it  is  a  watercourse  from 
its  source,  if  that  source  be  a  spring;  and  the  owner  of  the  land  on  which  it 
rises  cannot  monopolize  all  the  waters  at  its  source  so  as  to  prevent  their 
reaching  the  land  of  other  proprietors  lower  down.12  The  fact  that  a  creek  or 
outlet  from  a  lake  spreads  out  into  a  body  of  water  does  not.  make  it  a  stream 

1  Hinkle  v.  Avery  (la.),  55  N.  W.  Rep.  6  Murphy  v.   Wilmington,   5   Del.   Ch. 
77.  281. 

2  Case    v.    Hoffman  (Wis.),    72    N.  W.  7Chamberlain  v.  Hemmingway  (Conn.), 
Rep.  390  [1897],     See  Ne-Fee-Nauk  Club  22  Law  Rep.  Ann.  45. 

v.  Wilson  (Wis.),  71  N.  W.  Rep.  661.  8  Wadsworth    v.  -Smith,    u    Me.    278; 

3  Rigney  v.  Tacoma  Light  &  Water  Co.       Hubbard  v.  Bell,  54  111.  121. 

•Wash.),     38     Pac.    Rep.    147.      And    see  9  Palmer  v.    Mulligan   (N.  Y.),    3   Cai. 

Jrady    v.    Hayward    (Mich.),    72   N.  W.  3°7;     Hooker  v.    Cummings   (N.  Y.),    20 

Rep.  233  [1897].  Johns.  90. 

*  Barkley  v.  Wilcox,  86  N.  Y.  140;  Chi-  10  Van   Orsdal   z/.    Burlington,   etc.,  R. 

cago,  etc.,  Railroad   Co.   v.    Morrow,    42  Co.,  56  Iowa   470;  Union    Pac.  R.  Co.  v. 

Kan.  339;  Trustees   v.    Schroll   (111.),  12  Dyche,  31  Kan.  120;  Pyle  v.  Richards,  17 

N.  E.  Rep.  243  [1887].  Neb.  180;  Chauvet  v.  Hill,  93  Cal.  407. 

5  Shields   v.    Arndt,   4   N.  J.   Eq.     246;  "  Ferris  v.  Wellborn,  64  Miss.  29. 

Wagner  v.  L.  I.  R.  Co.  (N.  Y.),  5  Thomp.  12  Dudden  v.  Glutton  Union,  i  H.  &  N. 

&   C.    163.     And    see    Hoyt    v.    Hudson,  627:  Wood  v.  Wand,  3  Exch.  748;  Chauvet 

27  Wis.  656.  v.  Hill  (Cal.),  28  Pac.  Rep.  1066. 

*  Set  Sees.  231-250,  infra. 


§  173-  C+'ERATWNS  PRELIMINARY    70    CONSTRUCTION.  114 

of  a  different  character.  It  is  still  a  stream  if  there  is  a  set  and  uniform 
current.1  Its  character  is  not  lost  though  it  for  a  time  spreads  out  over  a 
meadow  or  is  lost  in  a  swamp  or  lake,  if  it  emerges  therefrom  and  can  be 
identified  as  the  same  stream. 

173.  Overflow  of  Watercourses. — Waters  which  have  overflowed  the 
banks  of  a  stream  in  times  of  freshet  because  of  the  insufficiency  of  the 
natural  channel,  are  surface-waters  within  the  meaning  and  rules  of  law 
relative  to  such  waters.2  The  moment,  however,  such  waters  return  to  the 
channel  they  are  not  surface-waters.  Water  which  seeps  through  an  embank- 
ment or  levee  is  deemed  surface-water,  and  is  governed  by  the  laws  applicable 
to  surface-waters. 

It  is  difficult  to  distinguish  between  the  surface-water  coming  from  the 
clouds  and  that  which  rises  in  a  spring,  especially  in  the  case  where  the 
surface-water  comes  from  the  mountains,  a  thousand  miles  from  where  the 
overflow  of  the  river  occurs,  occasioned  as  it  is,  not  by  rains  or  snows  in  its 
vicinity,  but  by  the  melting  of  snows  upon  the  mountains  and  by  the  accession 
of  a  thousand  tributary  streams.  It  has  been  held  that  the  overflow  of  the 
Missouri  River  is  what  in  law  is  termed  surface-water.3 

The  waters  of  a  stream  which,  during  the  rainy  season,  was  so  swollen 
by  the  freshets  that  it  flowed  in  high-water  channels,  having  well-defined  beds 
and  banks,  are  not  surface-waters  against  which  a  railroad  company  may  place 
solid  embankments  across  the  high-water  channels.4  Where  surface-water 
habitually  flows  off  over  a  fixed  and  determinate  course,  having  reasonable 
limits  as  to  width,  so  as  to  be  uniformly  discharged  at  a  definite  point,  though 
without  having 'worn  out  a  channel  having  definite  and  well-marked  banks, 
the  line  of  flow  is  a  watercourse  within  the  meaning  of  Revised  Statutes, 
which  declare  that  owners  of  land  may  drain  the  same  "  into  any  natural 
watercourse."  5  The  flood-water  of  the  Nemaha  River  is  held  not  to  oe  sur- 
face-water, but  a  constituent  part  of  such  stream — a  natural  watercourse.6 

Water  which  in  flood-time  leaves  the  channel  of  a  well-defined  river  and 
overflows  adjoining  lowlands,  the  current  of  the  river  widening  to  the  whole 
width  of  the  water,  has  been  held  not  surface-water  so  as  to  relieve  a  railroad 
company  from  liability  for  its  obstruction.7 

1  State    v.   Gilmarton,    14    N.   H.   467;  3  Shane    v.   Kansas  City,  etc.,  R.  Co., 
Hinkle  v.  Avery  (Iowa),  55   N.  W.    Rep.  71  Mo.   237   [1879];   Kauffman  v.  Greise- 
77.  mer,  26  Pa.  St.  408. 

2  24    Amer.    &    Eng.    Ency.    Law    903;  4  New  York,  C.  &  St.  L.  R.  Co.  v.  Ham- 
Shane  v.    Kansas   City,   etc!,  R.    Co.,  71  let  Hay  Co.   (Ind.),   47   N.  E.    Rep.  1060 
Mo.  237  [1879] ;  Jean  v.  Penna.  Co.  (Ind.  [1897]. 

App.),  36  N.  E.  Rep.  159;  Cass  v.  Dicks  5  Lambert  v.  Alcorn  (111.  Sup.),  33  N.  E. 

(Wash.).  44  Pac.  Rep.  113;  Mo.  Pac.  Ry.  Rep.  53. 

Co.  v.    Keys    (Kan.),   40    Pac.    Rep.  275;  6  Chicago,  B.  &  Q.  R.  Co.  v.  Emmert, 

New  York,  etc.,  R.  Co.  v.  Speelman  (Ind.  73  N.  W.  Rep.  540. 

App.),  40  N.  E.  Rep.  541.     But  see  Craw-  7  Moore    v.   Chicago,    B.  &  Q.   R.    Co. 

ford  v.  Rambo,    44  Ohio   St.  282,  contra,  (Iowa),  39  N.  W.  Rep.  390  [1888],  fo lloiv- 

and  Moore  v.  Chicago,  etc.,  Ry.  Co.  (la.),  ing   Sullens    v.  Railway   Co.,    38    N.  W. 

39  N.  W.   Rep.  390  [1888].  Rep.  545. 


ITS  RIGHTS  IN  REGARD    TO   SURFACE-WATERS.  §  1 75- 

174.  Property  in  Surface-waters. — Surface-water,   as  well  as  percolating 
water,  is  owned  by  the  person  or  party  who  owns  the  property  upon  which  it 
lies  or  through  which  it  passes.      Wild  water  that  flows  upon  the  surface  of 
the  earth,  or  temporarily  flows  over  it  as  the  natural  or  artificial  elevations  or 
depressions  may  guide  or  invite  it,  but  without  a  channel,   and  which  may  be 
caused  by  the  falling  of  rain  or  the  melting  of  snow  and  ice,  or  the  overflow- 
ing of  contiguous  streams  or  rivers,   is  absolutely  the  property  of  the  owner 
of  the  land  as  much  as  the  land  itself.      Such  waters  are  not  in  a  watercourse 
or  in  a  multitude  of  minute  watercourses,  but  in  the  eye  of  the  law  they  are 
the  moisture  and  a  part  of  the  soil  with  which  it  mingles,  and  the  person  who 
owns  the  soil  may  apply  all  that  is  found  therein  to  his  own  purposes  and  at 
his  own  free  will. l 

175.  Obstruction  and  Repulsion  of  Surface-waters. — The  law  governing 
the  obstruction  and  repulsion  of  surface-waters  is  in  a  very  unsatisfactory 
condition,  and  it  arises  from  the  adoption  of  two  rules — one,  known  as  the 
civil-law  rule,  which  subjects  the  lower  estate  to  an  easement  or  servitude  of 
receiving  the    flow  of    surface-waters    from    the    upper    estate,    and   another 
which  is  known  as  the  common-law  rule,  which  permits  the  lower  proprietor 
to  do  as  he  pleases  with  his  land  and  to  receive  or  repel  or  divert  surface- 
waters  flowing  upon  his  land  as  he  pleases.     One  or  two  states  seem  to  have 
adopted  a  modified  rule,  depending  upon  the  circumstances  of  the  case  and 
the  reasonableness  of  the  use  of  the  lower  estate.      In  those  states  which  have 
adopted    the    civil-law   rule   the  lower  estate  is   necessarily  subject  to  the 
natural  flow  of  the  surface-water  from  the  upper  one.      The  owner  of  the 
lower  land  has  no  right  to  erect  embankments  and  prevent  the  natural  flow 
of  the  water  from  the  higher  ground,  nor  has  the  owner  of  the  higher  ground 
a  right  to  make  excavations  from  drains  and  divert  the  water  from  its  natural 
channel  to  the  new  channel  made  on  the  lower  ground;  nor  can  the  owner 
of  the  higher  land  collect  into  one    channel  waters  usually  flowing  off  his 
neighbor's  land  by  several  channels,    and  thus    increase    the  flow  upon  the 
lower  estate.      The  owner  of  the  higher  land,  when  good  farming  requires  it, 
may  cover  up  and  conceal  drains  through  his  own  land  if  he  keep  the  place 
of  discharge  unchanged.      The  civil  law  created  an  easement  or  servitude  and 
drainage   over  lower  lands   and   waters   from   the   necessity   of  affording  an 
escape  for  the  flow  of  surface-waters.      The  rule  does  not  apply  to  the  over- 
flowing of  waters  from  large  streams  in  times  of  flood,  and  the  owners  of  land 
along  such  streams  may  construct  levees  or  embankments  to    protect  their 
lands  from  flood-waters,  even  though  the  effect  be  to  prevent  the  full  passage 
of  such  flood-waters  in  as  large  and  full  a  manner  as  they  would  otherwise 
pass,  and  even  though  they  increase  the  flow  of  flood-water  upon  lands  not 
similarly  protected.      If  the  owner  of  higher  land  is  subject  to  overflow,  he 
may  protect  himself  in  the  same  manner  by  erecting  levees  or  embankments, 

1  24  Amer.  &  Eng.  Ency.  Law  906. 


§  1/6.          OPERATIONS  PRELIMINARY   TO    CONSTRUCTION.  I  1 6 

even  though  it  increases  the  flood-waters  on  higher  lands  bounding  upon  the 
river. 

The  seepage  through  a  levee  or  embankment  in  time  of  flood  is  surface- 
water,  and  the  lower  proprietor  is  bound  to  permit  it  to  flow  through  his 
lands  in  the  same  manner  as  surface-water  usually  flows  over  them.1 

176.  Different  Laws  in  Different  States. — The  principles  of  the  civil  law 
have  been  adopted  in  Alabama,  California,  Georgia,  Illinois,  Pennsylvania, 
and  Tennessee.  The  laws  of  Iowa,  Kentucky,  Louisiana,  Maryland, 
Michigan,  Nevada,  North  Carolina,  and  Ohio  have  a  leaning  towards  the 
civil-law  rules.  North  and  South  Dakota  and  Oregon  do  not  appear  to  have 
decided  the  question  whether  the  civil-  or  common-law  rules  shall  be  applied. 

In  some  states  the  courts  distinguish  between  city  and  country  property, 
and  the  opinion  has  been  expressed  that  the  civil  law  does  not  apply  to  city 
and  village  lots.2 

The  common-law  doctrine  is  recognized  and  followed  in  England  and  in 
the  states  of  Connecticut,  Indiana,  Kansas,  Maine,  Massachusetts,  Minnesota, 
Mississippi,  Missouri,  Nebraska,  New  Hampshire,  New  Jersey,  New  Mexico, 
New  York,  South  Carolina,  Texas,  Vermont,  Washington,  and  Wisconsin.3 
Arkansas  has  adopted  what  seems  to  be  a  modified  rule,  under  which  the 
right  to  obstruct  surface-water  depends  upon  whether  the  obstruction  is  the 
necessary  result  of  the  reasonable  use  of  the  land.  If  it  be  reasonably 
necessary  to  obstruct  or  divert  the  natural  flow  of  surface-water,  the  right 
may  be  exercised  if  it  be  done  with  proper  regard  for  the  welfare  and  rights 
of  adjoining  owners.4  A  justice  of  a  Missouri  court 5  has  characterized  the 
common-law  rule  as  the  doctrine  of  sauve  qui  peuf,  popularly  known  as 
that  of  "  the  devil  take  the  hindermost. "  To  an  engineer  it  would  seem  he 
had  divulged  the  real  grounds  of  the  contention  when  he  said:  "  Nor  do  we 
think  that  equitable  and  just  principles,  as  we  understand  it,  will  materially 
retard  agricultural  operations  or  improvements.  The  facts  in  the  present  case 
show  that  the  defendant  could  have  built  a  rock  culvert  at  the  crossing  of  this 
hollow  at  about  the  same  cost  as  the  dirt  embankment.  The  engineer  seems 
to  have  been  misled  by  the  dry  and  rich  soil,  which  extended  to  the  very 
bottom  or  the  lowest  part  of  the  swale,  portions  of  which  were  in  cultivation; 
and  although  the  road  was  equally  strong  and  safe  with  a  rock  culvert  or  a 
dirt  embankment,  the  engineer  preferred  the  latter,  as  '  not  so  liable  to  wash 
•out  when  floods  came,  and  that  driftwood  and  other  debris  fill  the  culvert 
and  injure  it  or  the  bank  adjoining  it/'  Without  doubt  in  agricultural 
districts  the  civil-law  rule  is  most  equitable,  but  in  cities  and  districts  where 
large  and  expensive  improvements  are.  undertaken  the  common-law  rule  is 

1  24  Amer.  &  Eng.  Ency.  Law  907-911.       and  many  cases  reviewed  and  cited. 

2  24  Amer.  &  Eng.  Ency.  Law  915.  *  24  Amer.  &  Eng.  Ency.  Law  923. 

8  Walker  v.  New  Mexico,  etc.,  R.  Co.,  6  Justice  Lawrence  in  Shane  v.  Kansas 

17  Sup.  Ct.  Rep.  421.     See  Shane  v.  Kan-       City,  etc.,  R.  Co.,  71  Mo.  237  [1879]. 
sas  City,  etc.,  R.  Co.,  71  Mo.  237  [1879], 


117  RIGHTS  IN  REGARD    TO  SURFACE-WATERS.  §  i;8. 

more  equitable  and  is  better  calculated  to  encourage  the  development  and 
fulfillment  of  engineering  and  architectural  enterprises. 

177,  Improvements  on  Land  under  the  Common  and  Civil  Law  Rules, 
—The  common-law  doctrine  holds  that  the  owner  of  land  has  the  right  to 

occupy  and  improve  it  in  such  a  manner  and  for  such  purposes  as  he  sees  fit, 
either  by  altering  the  conditions  of  the  surface  or  by  the  erection  of  buildings 
or  other  structures,  and  that  such  right  is  not  restricted  or  modified  by  the 
fact  that  his  land  is  so  situated  with  reference  to  that  of  adjoining  owners  that 
the  alteration  in  the  mode  of  its  improvement  or  occupation  will  cause 
surface-water  to  stand  in  unusual  quantities  on  adjacent  lands,  or  prevent 
such  waters  from  passing  onto  and  over  such  lands  in  greater  quantities  and 
in  different  direction  than  they  are  accustomed  to  flow.1  The  common-law 
rule  is  founded  upon  the  principle  that  a  property  owner  has  a  right  to  the 
free  and  unfettered  control  of  his  own  land  both  upon  and  beneath  the 
surface,  and  that  it  cannot  be  interfered  with  or  restrained  by  any  considera- 
tions of  injury  to  other  lands  which  may  be  occasioned  by  the  flow  of  mere 
surface-water. 

It  is  held  not  material  in  the  application  of  this  principle  of  law  whether 
a  party  obstructs  or  changes  the  direction  and  flow  of  surface-waters.  He 
may  prevent  it  from  getting  within  the  limits  of  his  land,  or  may  erect  barriers 
or  change  the  level  of  the  soil  so  as  to  turn  it  off  into  new  courses  after  it  has 
come  within  his  boundaries.  Under  the  common  law  the  obstruction  qf 
surface-water  or  an  alteration  in  the  flow  of  it  affords  no  cause  of  action  on 
behalf  of  the  person  who  may  suffer  loss  or  detriment  therefrom,  as  against 
one  who  does  no  act  inconsistent  with  the  due  exercise  of  dominion  over  his 
own  soil.2 

The  doctrine  of  the  common  law  is  that  there  exists  no  such  natural 
easement  or  servitude  in  favor  of  the  owner  of  the  superior  or  higher  ground 
or  fields  as  to  mere  surface-water,  or  such  as  falls  or  accumulates  by  rain  or 
the  melting  of  snow,  and  that  the  proprietor  of  the  inferior  or  lower  tenement 
or  estate  may,  if  he  chooses,  lawfully  obstruct  or  hinder  the  natural  flow  of 
such  water  therein,  and  in  so  doing  may  turn  the  same  back  upon,  or  off  onto 
or  over,  the  lands  of  other  proprietors  without  liability  for  injuries  ensuing 
from  such  obstruction  or  diversion.3 

178.  Drainage  of  Surface-waters, — It  is  well  established  that  the  natural 
flow  of  surface-waters  from  higher  to  lower  grounds  will  not  give  a  cause  of 
action.      In  the  clearing,  improvement,  and  preparation  of  land  for  cultiva- 
tion, the  owner  may,  in  the  exercise  of  good  husbandry,  drain  his  soil,  although 
the  consequences  are  that  the  surface-waters  flow  from  his  land  with  greater 
rapidity  and  in  greater  quantities  upon  the  lower  land.4 

1  Gannon   v.  Hargadon,  10   Allen    106,  R.   Co.,    71   Mo.    237  [1879];  Johnson   v. 
Bigelow,  J.  Chicago,  etc.,   Ry.  Co.  (Wis.j,  50  N.  W. 

2  24  Amer.  &  Eng.  Ency.  Law  917.  Rep.  771. 

3  Ch.  Justice  Dixon  in  Hoyt  v.  Hudson,  4  Meixell  v.  Morgan  (Pa.),  24  Atl.  Rep. 
27  Wis.  656;  Shane  v.  Kansas  City,  etc.,  216;  24  Amer.  &  Eng.  Ency.  Law  926. 


§  1/8.          OPERATIONS  PRELIMINARY    TO    CONSTRUCTION.  Il8 

In  the  reasonable  'use  of  one's  land  one  may  fill  up  sag-holes,  pools,  and 
basins  so  that  water  shall  not  accumulate  or  stay  in  them,  even  though  the 
flow  upon  his  neighbor's  land  is  increased.  The  drainage  should  be  main- 
ained  in  the  direction  in  which  it  naturally  flows,  and  it  should  not  bet 
collected  into  a  ditch  or  drained  and  discharged  in  large  volume  upon  lower 
lands.1 

The  owner  may  make  such  ditches  or  drains  for  agricultural  purposes  on 
his  own  land  as  may  be  required  by  good  husbandry,  although  by  so  doing 
the  flow  of  water  may  be  increased  in  the  natural  channel  which  carries  the 
water  from  the  upper  to  the  lower  field.2  Substituting  an  underground  tile- 
drain  for  natural  surface  drainage  over  the  same  land  is  not  an  abandonment 
of  the  natural  watercourse.3 

Injunction  will  not  issue  to  restrain  the  discharge  of  water  into  a  drain  lead- 
ing to  the  land  of  the  servient  owner,  when  it  does  not  appear  that  the  owner 
is  injured  by  the  substitution  of  a  tile-drain  for  the  natural  surface  drainage.4 

The  defendant  must  not,  by  artificial  channels,  discharge  an  unnatural 
quantity  of  water  upon  the  plaintiff's  land.  If  by  reason  of  negligence  in 
not  keeping  the  channel  open  and  conducting  the  water,  as  it  had  formerly 
done,  away  from  the  plaintiff,  upon  its  own  land,  it  is  liable.  When  a  cor- 
poration or  individual  attempts  by  artificial  means  to  interfere  with  the 
natural  action  of  water  to  serve  its  or  his  own  purposes,  he  must  see  to  it  that 
it  shall  be  done  in  such  a  way  as  shall  not  unnecessarily  do  an  injury  to  his 
neighbor. 5 

The  owner  of  land  adjoining  a  highway  has  no  right  to  drain  his  land  into 
a  ditch  in  such  highway  by  means  of  a  drain  which  carries  the  water  in  a 
different  direction  from  its  natural  flow.6 

In  an  action  for  damages  for  injuries  for  the  unreasonable  discharge  of 
surface-waters  upon  the  lands  of  another,  it  is  no  defense  that  the  lower  land- 
owner may  have  protected  his  lands  and  have  avoided  the  damages  by  making 
proper  improvements.  All  of  the  states  hold  the  owner  of  land  liable  in 
damages  who  collects  water  in  a  body  and  casts  it  upon  the  lower  premises  to 
their  injury.  The  unlawful  discharge  of  the  waters  must  have  caused 
appreciable  damages.7 

1  Many  cases  in  24  Amer.  &  Eng.  Ency.  7  24   Amer.     &    Eng.    Ency.    Law    931* 
LawQ28.     See  Shane  v.  Kansas  City,  etc.,  Mitchell    v.   New  York,   etc.,   R.   Co.,  36 
R.   Co.,   71   Mo.  237  [1879];    Goodale  v.  Hun    (N.    Y.)    177     [1885];    Mitchell    v. 
Tuttle,  29  N.  Y.  459.  Bain  (Ind.),  42   N.  E.  Rep.  230;  Jacobson 

2  Ribordy  v.  Murray,  70  111.  App.  527.  v.    Van    Boening  (Neb.),  66  N.  W.    Rep. 

3  Lamberts.  Alcorn  (111.   Sup.),  33  N.  993;    Fremont,    etc.,    R.    Co.    r.    Marley 
E.  Rep.  53.  (Neb.),  40  N.  W.  Rep.  948  [1889],  25  Neb. 

4Resserz/.  Davis  (Iowa),  69  N.  W.  Rep.  138;  Resser  v.   Davis   (Iowa),   69  N.   W. 

524.  Rep.  524;   Lincoln  St.  Ry.  Co.   v.  Adams 

5  Mitchell  v.  New  York,  L.  E.  &  W.  R.  (Neb.),  6oN.W.  Rep.  83;   Drew  v.  Hicks 
Co.,  36  Hun  177  [1885].  (Cal.),  35   Pac.   Rep.   563.     And  see   Mis- 

6  Davis  v    Commissioners  (111.  Sup.),  33  souri,    K.  &  T.  Ry.  Co.  v.  Bishop  (Tex.), 
N.  E.  Rep.  58.  34  S.  W.  Rep.  323. 


119  RIGHTS  IN  REGARD    TO   SURFACE-WATERS.  §  l8o. 

The  county  or  state,  upon  making  just  compensation  to  the  parties 
injured,  may,  in  constructing  a  highway,  divert  waters  in  a  manner  which 
could  not  be  undertaken  by  an  individual.1  The  owner  of  a  swamp,  which  is 
the  natural  place  of  deposit  of  surface-water,  cannot  complain  because  the 
city  deposits  such  waters  in  the  swamp  by  storm-sewers  after  the  swamp  has 
been  improved. a 

179.  Drainage   of  Ponds,  Stagnant   Bodies,  etc. — When    surface-waters 
reach  and  become  a  part  of  a  permanent  body  of  water  contained  in  a  natural 
basin  and  forming  a  lake  or  pond,  but  having  no  outlet,  and  it  is  situated  on 

he  lands  of  two  or  more  persons,  they  lose  their  character  as  surface-waters, 
and  are  governed  by  laws  applicable  to  watercourses.  A  pond  of  surface- 
water  may  not  be  drained  upon  the  lands  of  a  neighbor  where  water  would 
not  otherwise  go.3 

If  a  pond  have  no  outlet  except  by  percolation  and  evaporation,  it  is  a 
burden  to  the  estate  upon  which  it  is  situated,  unless  the  owner  can  drain  it 
without  injury  to  others.  It  has  even  been  held  that  a  landowner  could  not  cut 
through  a  ridge  situated  upon  his  own  land  and  discharge  a  swamp  upon  his 
own  land,  if  such  waters  by  percolation  into  his  land  were  transmitted  upon 
his  neighbor's  land  to  his  injury.4 

Yet  it  has  been  frequently  held  that  where  natural  ponds  are  merely  the 
collection  of  surface-waters  from  rain  or  melting  snow,  and  where  there  is. 
such  a  descending  grade  that  by  filling  up  the  ponds  with  dirt  there  would 
be  a  flow  of  water  toward  and  into  lower  lands,  such  ponds  may  for  the 
purposes  of  husbandry  be  drained  by  either  tile  or  other  drains  into  any 
natural  watercourse  existing  upon  the  superior  estate  and  which  flows  over 
the  lower  estate,  though  the  flow  of  water  be  increased.  This  would  not 
permit  the  upper  property  owner  to  drain  a  large  body  of  water  upon  the 
lower  land  of  his  neighbor  to  its  serious  injury.  A  landowner  may  drain 
surface-water  directly  into  an  adjoining  pond  if  it  formerly  flowed  there 
naturally  over  the  surface.5 

The  owner  of  a  marsh  or  swamp  having  a  natural  outlet  to  a  lake  cannot 
drain  the  marsh  by  means  of  a  ditch  dug  in  such  manner  as  to  drain  off  the 
waters  of  the  lake.6 

180.  Water  from  Roofs. — This  is  an  important  subject  to  the  architect  or 
engineer  in  designing  and  erecting  structures.      Rain-water  and  melting  snow 
may  not  fall  from  the  roof  of  a  building  upon  a  neighbor's  premises,    either 
from    the    eaves    or    by  collecting  it  in  gutters  or  eaves-troughs,    and  then 
turning  it  in  a  body  upon  the  adjoining  lands.     If  a  building  is  erected  so 

1  Churchill  v.  Beethe  (Neb.),  66  N.  W.       W.    R.  Co.,    36    Hun   177;    Anderson    -v. 
Rep.  992.  Henderson    (111.),    16    N.    E.     Rep.     232 

2  St.  Paul  &  D.  R.  Co.  v.  City  of  Du-       [1888]. 

luth  (Minn.),  58  N.  W.  Rep.  159.  5Hoester    v.    Hemsath,  16   Mo.    App. 

3  Davis  v.  Londgreen,  8  Neb.  43.  485.     See   Rath  v.  Zimbleman  (Neb.),  68 
'     *Vernum  v.  Wheeler  (N.  Y.),   35   Hun       N.  W.  Rep.  488. 

53.     And  see  Mitchell  v.  N.   Y.  L.   E.  &  6  Bennett  v.  Murtaugh,   20   Minn.  151.. 


§  l8l.  OPERATIONS  PRELIMINARY    TO    CONSTRUCTION.  I2O 

that  the  eaves  project  over  neighboring  land,  or  so  that  they  touch  a 
neighbor's  wall,  and  injury  results,  the  owner  of  the  building  causing  such 
injury  will  be  liable  in  damages.1  When  a  slanting  roof  was  built  so  close  to 
the  boundary -line  that  in  heavy  storms  the  water  was  thrown  over  the  line 
onto  the  building-wall  of  the  neighbor,  softening  and  destroying  the  mortar 
between  the  stones  to  such  an  extent  as  to  weaken  the  wall,  it  was  held  that 
the  owner  of  the  roof  was  liable  for  the  damage.2  The  right  to  flood  the 
land  of  another,  whether  from  the  dripping  from  the  roof  of  a  building  or 
otherwise,  is  an  interest  in  the  land,  and  a  parole  license  or  agreement  giving 
such  right  is  within  the  statute  of  frauds,  and  void.  Such  a  license  is 
revocable  at  any  time;  it  should  be  granted  by  deed.3 

181.  Eaves-troughs,  Gutters,  and  Conductors. — Where  the  eaves  of  a 
building  project  over  the  boundary-line,  and  the  neighbor,  in  erecting  a 
wall  for  a  building,  saws  them  off  to  make  room  for  his  wall,  and  while  in 
this  condition  a  storm  occurs  which  throws  large  quantities  of  water  upon 
the  wall  to  its  injury,  still  the  owner  of  the  building  causing  the  injury  is 
liable  for  the  damages,  and  the  fact  that  the  eaves  of  the  projecting  roof  had 
been  provided  with  a  trough  to  carry  away  the  water  from  the  roof  will  not 
relieve  him  from  damages.4  Buildings  must  be  provided  with  proper  eaves- 
troughs  or  gutters,  and  these  must  be  kept  in  proper  repair  to  relieve  their 
owner  from  damages  arising  from  injury  to  his  neighbor.  If  gutters  or  eaves- 
troughs  have  been  constructed  and  of  sufficient  capacity  to  carry  off  such 
rains  as  may  reasonably  be  expected,  there  will  be  no  liability  for  injuries 
caused  by  extraordinary  rains,  such  as  experience  and  prudent  foresight  would 
not  have  guarded  against.5  Ordinary  rains  have  been  denned  as  all  usual  and 
always-to-be-expected  rains  in  various  seasons  of  each  year,  and  "extraordi- 
nary rains  "  as  those  that  do  not  recur  nor  are  reasonably  to  be  expected  yearly. 6 

It  is  no  excuse  for  one  who  has  permitted  water  from  his  roof  to  be  dis- 
charged against  the  wall  of  another's  building  to  its  injury,  that  if  the  said 
wall  had  been  well  built  no  damage  would  have  been  sustained.5  If  the  land 
of  two  property  owners  be  divided  by  a  party-wall,  and  its  height  has  been 
increased  by  one  owner,  and  a  roof  erected  in  such  a  manner  as  to  turn  water 
upon  his  neighbor's  roof  below,  and  large  icycles  are  formed  on  the  wall  as 
it  is  carried  up,  which  overhang  the  neighbor's  building  and,  being  detached, 
fall  upon  the  roof  and  injure  it,  he  will  be  held  liable  for  the  injuries,  and 
may  be  restrained  from  continuing  such  a  nuisance  by  injunction.7 

It  is  not  necessary  that  injury  be  suffered  by  the  one  upon  whose  roof 
water  is  unlawfully  discharged.  The  defendant  is  entitled  to  nominal 

1  Tanner  v.  Valentine,  75  111.624  [1874].  Aurora  v.  Reed,  57  111.  30. 

2  Copper  v.  Dolvin,   68    la.  757;  accord,  *  Copper  v.  Dolvin,  68  la.  757. 
Martin  v.  Simpson  (Mass.),  6  Allen   102.  5  Gould  v.  McKenna,  86  Pa.  St.  297. 

3  Tanner    v.    Valentine,     75     111.     624  6  Meister  v.  Lang,  28  111.  App.  624.          t 
[1874];  Stout  v.   McAdams,   2  Scam.  67;  'Brooks  v.  Curtis  (N.  Y.),  4  Lans.  287. 
Nevins  v.   Peoria,    41    111.    502;    City    of 


121  RIGHTS  IN  REGARD    TO   SURFACE-WATERS.  §  183. 

damages,  at  least  for  the  invasion  of  his  rights.1  The  projection  of  eaves  over 
the  boundary-line  of  one's  neighbor  is  a  nuisance  for  which  damages  will  be 
awarded  without  any  proof  of  special  damages.2 

182.  Discharge  of  Eoof-waters,  Snow,  and  Ice  into  Street. — Buildings  in 
villages  or  cities  which  are  erected  on  or  close  to  the  line  of  the  street  must 
be  so  designed  and  erected  that  snow  and  ice  falling  from  the  roof  shall  not 
be  precipitated  upon  persons  lawfully  using  the  streets.     The  roof  of  the 
building  so  constructed  as  to  permit  snow  to  fall  into  the  street  is,  in  the 
judgment  of  the  law,  a  nuisance,  and  the  owner  liable  to  persons  injured  by 
falling  snow  or  ice.3     A  tenant  of  such  a  building  may  be  liable  if  by  the  use 
of  ordinary  care  the  accident  could  have  been  prevented.4 

The  liability  for  the  consequence  of  rain  dripping  from  the  roof  has  been 
held  not  absolute,  but  to  exist  only  when  the  injury  arises  from  some  fault  or 
neglect  of  duty.5 

Roof-water  may  be  collected  and  discharged  from  a  water-spout  into  an 
alley  at  grade,  without  being  liable  for  the  flooding  it  occasions  to  adjoining 
lands  which  are  not  protected  against  the  grade  of  the  alley.6 

183.  Easement  of  Eaves-drip. — The  right  to  discharge  water  from  roofs 
upon  adjoining  lands  may  be  acquired  by  continued  adverse  use  for  the  pre- 
scriptive or  statutory  period,  but  an  easement  of  eaves-drip  will  not  justify  the 
erection  of  troughs  and  spouts  to  collect  the  rain-water  and  discharge  it  upon 
land  in  a  stream.7     When  one  has  acquired  an  easement  for  the  drip  of  his 
eaves,  it  has  been  held  that  the  raising  of  the  roof  to  a  greater  height  did  not 
destroy  his  right   if  the  adjoining    land   was   not   subjected   to   any  greater 
burden  by  the  alteration.8 

Where  two  buildings  are  so  situated  that  the  water  from  the  roof  of  one 
can  only  be  prevented  from  flowing  against  and  injuring  the  other  by  an 
eaves-trough  attached  to  both,  though  the  consent  and  cooperation  of  the 
owner  of  the  building  receiving  the  injury  may  be  necessary,  yet  the  duty  of 
affirmative  action  is  on  the  owner  of  the  building  which  causes  the  injury,  and 
he  may  not  lie  by  and  see  the  water  from  his  roof  destroy  his  neighbor's 
wall,  and  rely  for  his  protection  upon  the  passiveness  of  his  neighbor.9  The 
defendant  may  be  held  liable  whether  he  was  responsible  for  all  or  only  a  part 
of  the  injury.10 

The  respective  duties  which  adjoining  proprietors  mutually  improving 
their  property  in  a  town  owe  to  one  another  are  those  only  which  the 

1Hooten  v.  Barnard,  137  Mass.  36.  7  Reynolds  v.  Clark,  2  Ld.  Raym.  1399. 

2  Fay  v.  Prentice  (Eng.),  i  C.  B.  838.  Grace    M.    E.    Church    v.    Dobbins    (Pa; 

3  24  Amer.  &  Eng.  Ency.  Law  941.  Sup.),  25  Atl.  Rep.  1120. 

4  Clifford  v.  Atl.  Cot.  M.,  146  Mass.  47.  8  Harvey  v.  Walters,  L.  R.  8  C.  P.  162; 

5  Barry    v.    Peterson,    48    Mich.     263;  Thomas  v.  Thomas,  2  C.  M.  &  R.  34. 
Chandler    v.   Lazarus    (Ark.),    18    S.    W.  9  Underwood  v.  Waldron,  33  Mich.  232 
Rep.  181.  [1878]. 

6  Phillips    v.    Waterhouse    (Iowa),    22  10 Chandler  v.  Lazarus  (Ark.),  18  S.  W. 
The  Reptr.  330.  Rep.  181. 


§  184.  OPERATIONS  PRELIMINARY   TO    CONSTRUCTION.  122 

requirements  of  good  neighborhood  in  such  a  town  would  impose,  i.e.,  each 
must  use  all  due  care  and  prudence  to  protect  his  neighbor,  but  is  not  bound 
at  all  events  and  under  all  circumstances  to  protect  his  neighbor,  and  any 
injury  that  may  result  notwithstanding  the  observance  of  proper  caution 
must  be  deemed  incident  to  the  ownership  of  town  property,  and  can  give  na 
right  of  action.  Injuries  from  extraordinary  or  accidental  circumstances  for 
which  no  one  is  in  fault  must  be  left  to  be  borne  by  those  on  whom  they  fall.1 

184.  Drainage  of  Surface-waters  into  Watercourses, — A  property  owner 
may  drain  waters  from  his  land  into  streams  or  natural  watercourses,  and 
such  a  right  to  drain  is  not  limited  to  the  discharge  of  surface-waters  in  the 
same  manner  as  when  the  land  was  in  its  natural  state.  The  flow  of  surface- 
water  may  be  changed  and  controlled  by  ditches  and  in  other  ways  which 
accelerate  the  flow  or  increase  the  volume  of  water  which  reaches  the  stream. 
If  in  doing  this  he  makes  only  a  reasonable  use  of  his  premises,  he  exercises 
his  legal  right  and  incurs  no  liability  to  the  lower  owner.2  A  mine-owner 
may  pump  water  from  his  land  into  a  stream  although  the  quantity  of  water 
in  the  stream  be  increased.3  The  natural  capacity  of  the  watercourse  must 
not  be  overburdened  to  the  injury  of  lower  riparian  owners.4 

A  lot  flooded  with  surface-water  from  another  building  lot,  flowing  into 
an  alley  or  street  at  the  established  grade,  does  not  give  the  lot-owner  a 
cause  of  action.5  Surface-water  from  a  garden,  carrying  solid  matter  into  a 
mill-pond,  does  not  give  the  mill-owner  a  cause  of  action. 

Surface-water  collected  in  the  catch-basins  or  gutters  beneath  the  surface 
of  the  road,  and  which  percolates  through  the  soil  into  a  cellar  upon  a  lot 
adjoining,  gives  no  cause  of  action  against  the  town.7 

The  right  to  have  water  drained  from  its  property  through  the  natural 
channel  exists  in  favor  of  a  municipal  corporation  to  the  same  extent  as  in 
favor  of  a  private  individual.8 

The  owner  of  land  bounded  upon  a  watercourse  has  the  right  to  all 
advantages  of  drainage  which  the  stream  reasonably  used  affords,  and  he  may 
drain  his  land  into  the  stream.9 

Pits  made  by  excavating  for  clay  or  building-stones  and  which  form  a 
natural  reservoir  into  which  surface-water  collects  may  be  emptied  into  a 
stream,  even  though  the  quantity  be  greater  than  it  would  otherwise  have 
been,  if  the  natural  capacity  of  the  watercourse  be  not  exceeded.  When  such 

1  Underwood  v.  Waldron,  33  Mich.  232  6 Middlesex  Co.   v.   McCue,  149  Mass. 

[1876].  103. 

8  Waffle  v.  N.  Y.  Cent.  R.  Co..  53  N.  Y.  7  Kennfson  v.  Beverly,  146  Mass.  467. 

II ;  McCormick  v.  Horan,  81  N.  Y.  86.  But  see  Toledo  v.  Grasser,  12  Ohio  C.  C. 

3  Penn.  Coal  Co.  v.  Sanderson,  113   Pa.  520,  where  water  escaped  from  a  sewer. 

St.  126.  8Keithsburg   v.   Simpson,  70  111.   App. 

*Noonan  v.  Albany,  79  N.  Y.  470;  Me-  467  [1896]. 

Cormick  v.  Horan,  81  N.  Y.  86;  Rudel  v.  9  24  Amer.  &  Eng.  Ency.  Law  924,  925; 

Los  Angeles  Co.  (Cal.).  50  Pac.  Rep.  400.  Waffle  v.   N.  Y.  Central  R.  Co.,  53  N.  Y. 

5  Phillips  v.  Waterhouse,  69  la.  199.  II  [1873], 


123  RIGHTS   IN  REGARD    TO   SURFACE-WATERS.  §  185. 

waters  are  pumped  from  the  ditch  into  a  watercourse,  such  watercourse  may 
not  be  obstructed  by  lower  riparian  owners  to  the  injury  of  the  owner  of  the 
pit  or  quarry,1  and  although  the  quantity  of  water  in  the  stream  is  thereby 
increased  in  time  of  high  water  and  diminished  at  other  times  to  the  damage 
of  a  riparian  proprietor  below.2 

The  owners  of  swamps,  the  waters  of  which  naturally  flow  into  natural 
watercourses,  can  make  such  canals  in  the  swamps  as  are  necessary  to  drain  ' 
them  of  the  water  naturally  flowing  therein,  though  in  so  doing  the  flow  of 
water  in  the  natural  watercourse  is  increased,  whereby  the  water  is  discharged 
on  the  land  of  a  person  abutting  on  such  watercourse.3 

185.  Prescriptive  Rights  to  Drainage  of  Surface-water. — It  is  a  general 
principle  of  the  law  of  prescription  that  there  can  be  no  prescriptive  right 
where  there  is  no  adverse  user,  and  that  there  can  be  no  adverse  user  without 
such  use  gives  a  right  of  action.*  In  those  states  which  follow  the  common- 
law  rule  as  to  obstruction  and  repulsion  of  surface-waters  f  it  is  held  that  no 
lapse  of  time  gives  a  right  to  drain  surface-water  in  its  natural  state  upon  his 
neighbor's  land.  This  result  necessarily,  follows  from  the  fact  that  the  dis- 
charge of  the  water  in  its  natural  condition,  or  its  obstruction  or  repulsion, 
gives  no  cause  of  action.4  In  those  states  where  the  civil  law  prevails,  f  the 
owner  of  the  lower  land  may,  by  obstructing  the  flow  of  surface-waters  for 
the  necessary  period  without  interruption,  acquire  a  right  by  prescription  to 
dam  back  such  surface-waters  that  overflow  such  higher  lands. 

It  is  an  actionable  wrong,  anywhere,  for  an  owner  of  upper  Uands  to 
collect  surface-water  in  a  ditch,  drain,  or  other  artificial  stream,  and  cast  it 
in  a  volume  on  the  lower  lands;  therefore  a  right  to  so  collect  and  discharge 
surface-waters  may  be  acquired  by  prescription.  In  order  to  establish  a  pre- 
scriptive right  to  discharge  waters  upon  lower  lands,  the  owner  of  higher 
ground  must  have  used  the  same  ditch  or  channel  for  the  full  prescriptive 
period.5  He  cannot  change  the  method  of  discharge  and  claim  a  right  to 
discharge  waters  in  the  altered  manner  or  in  a  different  quantity. 

Adverse  user  does  not  exist  where  the  discharge  of  water  is  under  license 
or  by  consent  or  permission  of  the  owner  of  the  low  lands;  and  under  siach 
license  no  prescriptive  right  is  acquired.  \  One  who  has  a  license  from  a  town 
to  fish  and  sail  on  a  reservoir  during  his  natural  life  cannot,  by  the  use  of 
such  license,  obtain  an  absolute  title  by  prescription.6  A  request  by  a  mill- 
dam  owner  for  permission  from  riparian  landowners  to  use. a  flash-board  on 

1  McCormick  v.  Horan,  81  N.  Y.  86.  ^24  Amer.  &  Eng.  Ency.  Law  937. 

2  Waffle  v.   New  York  Central  R.    Co.,  5  Leidlein  v.  Meyer  (Mich.),   55  N.   W. 
53   N.    Y.    n    [1873].     But  see    Rudel    z/.       Rep.  367. 

Los  Angles  Co.,  50  Pac.  Rep.  400.  6 Dunham   v.   New   Britain  (Conn.),   II 

3Mizell  v.  McGowan  (N.  C.),  26  S.  E.       Atl.  Rep.  354  [1888]. 
Rep.  783- 

*  See  Sees.  326,  supra,  and  511-540,  and  682-690,  infra 

\  See  Sees.  175-178,  supra. 

J  See  Sees.  682-690,  infra,  Prescription. 


§  1 86.          OPERATIONS   PRELIMINARY    TO    CONSTRUCTION.  124 

his  dam,  thus  raising  the  water,  is  a  sufficient  acknowledgment  of  a  superior 
right  to  defeat  the  subsequent  acquisition  of  a  prescriptive  right  to  use  a  flash- 
board.  1 

Where  surface-water  collected  in  a  natural  depression,  partly  on  defend- 
ant's land,  but  mostly  on  plaintiff's,  has  been  used  by  the  latter  for  many 
years  to  float  logs,  his  adverse  user,  for  ten  years  (in  Mississippi),  of  a  dam  to 
raise  the  water  gives  him  a  right,  as  against  defendant,  to  maintain  the  water 
at  its  artificial  stage.2  The  measure  of  prescriptive  right  has  been  held  not 
to  be  the  dimensions  of  the  drain,  but  the  quantity  of  water  discharged.3 

186.  Control  and  Regulation  of  Surface-waters  by  Municipal  Corpora- 
tions,— In  the  absence  of  any  constitutional  provision  or  statutory  enactment 
to  the  contrary,  the  city  incurs  no  liability  to  abutting  owners  on  streets  for 
injuries  resulting  to  their  property  from  the  improvement,  the  grading  or 
regrading  of  the  city  streets,  if  the  work  has  been  done  in  pursuance  of 
authority  conferred  upon  the  city,  and  if  the  work  has  been  executed  in  a 
prudent,  careful,  and  skillful  manner,  so  as  to  cause  no  unnecessary  damage. 
The  construction  of  drains,  sewers,  and  gutters  falls  within  this  rule. 

Such  work  is  within  the  discretion  of  the  city.  For  the  mere  failure  or 
refusal  to  exercise  it  the  city  incurs  no  responsibility.4  A  city  is  not  liable 
to  the  owner  of  private  premises  within  its  boundaries  for  failing  to  provide  a 
system  of  sewerage  to  carry  away  from  such  premises  surface-water  naturally 
coming  thereon.5 

There  is  no  obligation  upon  a  city  to  continue  in  use  a  sewer  or  drain 
which  it  has  built.  It  may  wholly  discontinue  or  abandon  it  without  incur- 
ring liability  to  abutting  owners,  if  the  discontinuance  or  abandonment  does 
not  leave  them  in  any  worse  condition  than  they  would  be  if  the  drain  or 
sewer  had  never  been  built.6  If  a  city  has  provided  a  means  of  draining 
abutting  property  by.  gutters  and  sewers  in  the  street,  and  makes  subsequent 
changes  in  the  grading  of  said  street  which  destroy  the  drainage,  there  is  no 
obligation  on  the  city  to  provide  new  means  for  the  same  purpose.7 

No  liability  arises  for  injury  occasioned  to  land  from  being  flooded  with 
surface-water  of  the  street  which  the  city  has  neglected  to  drain.  House-lots 
flooded  with  surface-water  in  consequence  of  a  change  of  grade  or  alteration 
of  the  contour  of  the  ground  by  constructing  or  grading  the  street  are  subject 
to  such  burdens,  the  injury  from  which  no  damages  may  be  recovered  against 
the  city.  The  city  may  even  prevent  such  surface-water  from  flowing  into 
the  street  from  a  house-lot  without  incurring  liability.8 

1Weed  v.   Keenan  (Vt.),   13  Atl.   Rep.       Duluth  (Minn.),  58  N.  W.  Rep.  159. 
804  [1888].  6Atchison  v.   Challis,  9  Kan.  603.    See 

2  Alcorn  v.  Sadler  (Miss.),  14  So.    Rep.       Collins  v.  Waltham,  151  Mass.  198. 

444;  Leidlein  v.  Myer  (Mich.),   55  N.   W.  7  Henderson  v.   Minneapolis,  32  Minn. 

Rep.  367.  319;  Waters  v.   Bay   View,   61  Wis.   642 

3  Chappel  v.  Smith,  80  Mich.  100.  [1884],  and  cases  cited. 

4 24  Amer.  &  Eng.  Ency.  Law  942.  8  Keith     v.     Brocton,    136    Mass.     119; 

5'St.     Paul    &    D.    R.    Co.    v.    City   of       Kehrer  v.  Richmond  (Va.),  22  The  Reptr. 


125  RIGHTS   IN  REGARD    TO   SURFACE-WATERS.  §  1 88. 

Where  a  municipal  corporation,  by  grading  and  paving  streets,  prevents 
the  absorption  of  rain,  which  is  consequently  discharged  on  adjoining  land  in 
greater  quantities  than  it  would  otherwise  have  been,  the  municipality  is  not 
liable  for  the  damages  caused  thereby,  as  it  cannot  be  compelled  to  construct 
drains  to  dispose  of  surface-water.1 

187.  Surface-water  Discharged  or  Detained  by  Grading  Streets, — A  city 
incurs  no  liability  by  filling  up  and  grading  its  streets,  even  though  it  prevent 
surface-waters  from  adjoining  lots  flowing  upon  the  street,  or  cause  surface- 
waters  to  flow  from  such  streets  upon  such  lots,  and  to  flow  upon  them  in  a 
different  way  and  in  larger  quantities  than  before.     When  a  city  has  exercised 
its  discretion  as  to  where  it  will  build  a  sewer,  and  what  water  it  will  conduct 
into  an  existing  sewer,  and  what  drains  it  will  connect  therewith,  its  decision 
is  not  subject  to  review  or  question  in  the  New  York  courts.2     Nor  is  a  city 
bound  to  furnish  drains  or  sewers  to  relieve  a  lot  of  its  surface-water.3* 

A  city  lot-owner  has  a  right  to  bring  his  lot  to  grade  and  thereby  prevent 
surface-water,  which  has  been  turned  there  by  the  city  in  improving  its 
streets,  from  flowing  over  it.4 

188.  Liability  of  City  for  Defective  Plans  for  Drainage.— The  adoption 
of  a  plan  for  the  grading  of  a  street  has  been  held  to  involve  the  exercise  of 
discretionary  and  judicial  powers  on  the  part  of  municipal  officers,  and  that 
no  liability  exists  for  damages  sustained  by  reason  of  a  defect  in  the  plan.5 

Authority  conferred  upon  cities  to  determine  where  drains  and  sewers 
should  be  built  has  been  held  in  the  nature  of  judicial  powers,  and  to  depend 
upon  considerations  affecting  the  public  health  and  general  convenience. 
For  a  mere  error  of  judgment  in  the  plan  or  system  adopted  the  city  is 
frequently  held  not  liable.  It  has  even  been  declared  that  "  if  a  municipality 
adopt  a  plan  however  inefficient,  and  constructs  its  drains  and  sewers  in  con- 
formity thereto,  and  injury  results  in  consequence  of  the  plan  being  defective 
or  of  the  drains  or  sewers  being  deficient  in  size  and  inadequate  to  accommo- 
date all  the  waters  which,  if  the  drains  were  larger,  would  naturally  flow 
through  them,  there  is  no  resulting  liability."  6 

It  is  submitted  that  this  is  not  a  precise  statement  of  the  law.  Many 
cases  have  held  that  it  was  negligence  of  the  officers  of  a  municipal  corporation 
to  assume  such  professional  and  expert  duties  as  they  are  not  qualified  to 

219  [1886];  Phillips  v.   Waterhouse  (la.),  Rep.    266.     But  see  Edwards  v.  Peoria, 

22   The  Reptr.    330  [i886|;    Churchill  v.  66111.  App.  68. 

Beeth    (Neb.),     66     N.     W.     Rep.     992;  *  Cedar  Falls  v.  Hansen  (la.),  73  N.  W. 

Borough   of  West  Bellevue  v.   Huddlen  Rep.    585    [1897].     But  see  Davidson  v. 

(Pa.),  16  Atl.  Rep.  764  [1889].  Sanders,    i    Pa.    Super.     Ct.    Rep.    432, 

1  Anchor    Brew.    Co.   v.    Dobbs    Ferry  where  a  landowner  negligently  changed 
(Sup.),  32  N.  Y.  Supp.  371.  the  grade  of  his  lot. 

2  Lynch    v.  The   Mayor,  76    N.  Y.  60;  5  24  Amer.    &    Eng.    Ency.    Law   945; 
Jordan    v.   Benwood    (W.   Va.),  26    S.  E.  Sullivan,  Town  of  v.    Phillips  (Ind.),  u 
Rep.  266.  N.  E.  Rep.  300  [1887]. 

3  Jordan  v.  Benwood  (W.  Va.),  26  S.  E.  6  24  Amer.  &  Eng.  Ency.  Law  945. 

*  See  Sec.  186,  supra. 


§  189.          OPERATIONS  PRELIMINARY    TO    CONSTRUCTION.  126 

undertake ;  that  for  public  officers  to  undertake  to  pass  upon  the  efficiency 
and  suitableness  of  a  sewer  or  system  of  sewers  for  a  city  or  community  was 
such  negligence  as  would  render  the  city  liable  for  their  want  of  due  and 
ordinary  care.  As  well  might  city  officials  undertake  the  treatment  of 
diseases  in  the  wards  of  a  public  hospital,  or  to  defend  actions  brought  against 
the  city  in  a  court,  as  to  undertake  to  plan  a  system  of  drains  or  sewers  or 
any  other  important  public  improvement  that  the  needs  of  the  city  require. 
There  can  be  no  doubt  but  that  a  city  would  be  liable  to  a  patient  confined 
in  a  pest-house  for  treatment  furnished  him  which  was  not  of  a  professional 
and  reasonably  skillful  character.  A  municipal  corporation  in  one  case  is 
the  guardian  of  the  public  health  and  must  guarantee  to  its  citizens  over 
whom  or  whose  property  it  assumes  control  that  they  or  their  property  shall 
not  be  neglected,  but  shall  have  proper  and  skillful  services  of  professional 
men.  If  property  is  subject  to  injuries  from  sewers  or  other  structures,  it  is 
.a  want  of  ordinary  care  for  the  agents  of  such  cities  to  undertake  professional 
duties  for  which  they  have  no  special  preparation  or  skill.1  Many  cases  hold 
that  a  city  must  exercise  due  care  and  skill  in  the  selection  of  a  plan,  and 
must  furnish  drains  and  sewers  of  sufficient  capacity  to  carry  off  all  the  water 
-which  may  reasonably  be  expected  to  accumulate.2 

Some  of  the  cases  cited  are  doubtless  decided  on  the  ground  that  the 
necessity  for  the  sewers  or  drains  was  occasioned  by  the  act  of  the  city  in 
collecting  the  water,  and  that  therefore  it  were  bound  to  furnish  adequate 
means  of  drainage;  others  perhaps  on  the  ground  that  it  was  negligence  for 
-officers  of  a  city  without  special  qualifications  to  select  a  design  for  sewers. 
A  plan  adopted  by  a  city  for  a  structure  must  be  a  reasonable  one;  and  if  it  is 
not,  inquiry  may  be  made  as  to  how  it  was  adopted ;  and  if  negligence  can  be 
shown,  or  want  of  ordinary  and  reasonable  care,  in  its  adoption,  then  the  city 
may  be  held  for  negligence. 

189.  Liability  for  Defective  Construction  or  Inferior  Materials, — After 
a  plan  has  been  adopted,  the  manner  of  its  execution  is,  with  respect  to  the 
rights  of  citizens,  a  ministerial  duty,  and  for  any  negligence  or  unskillfulness 
in  the  execution  or  construction  of  the  work,  whereby  injury  is  inflicted  upon 
private  property,  the  city  will  be  held  responsible.3  If  the  city  cut  a  gutter 
and  thereby  caused  the  surface-water,  which  had  theretofore  flowed  by  natural 
outlet,  to  flow  along  the  gutter,  and  the  said  gutter  was  so  negligently  con- 
structed as  to  cause  the  water  to  percolate  into  plaintiff's  basement,  and  to 
cause  the  floor  to  crack,  etc.,  to  plaintiff's  damage,  the  city  is  liable.4 

1  Wait's  Engin.  and  Arch.  Jurisp.,  Sec.  Ellis  v.  Iowa  City,  29  la.  229. 
245-247.                                                            _  3  Hitchins  v.    Frostburg,  68    Md.    100. 

2  Spangler  v.  San  Francisco,  84  Cal.  17;  And  see   North   Vernon    v,  Voegler,    103 
Aurora  v.  Lode,  93  111.  521;    Dickson   v.  Ind.  316. 

Baker,  65  111.  518;  Indianapolis  v.  Huffer,  4  Comanche   v.   Zettlemoyer  (Tex.),  40 

30  Ind.  235;  Weis  v.   Maddeson,  75   Ind.       S.  W.  Rep.  641. 
241;  Evansville  v.   Decker,  84  Ind.  325; 


127  RIGHTS  IN  REGARD    TO   SURFACE-WATERS.  §  IQI. 

190.  Accumulation  and  Discharge  of  Waters  upon  Private  Lands. — If  a 

city  change  the  natural  flow  of  water  and  divert  it  into  another  direction,  and 
cause  it  to  flow  in  large  quantities  upon  abutting  premises,  the  corporation  is 
liable  in  damages  without  regard  to  the  efficiency  of  the  plan  and  whether  the 
work  was  negligent  or  not.1 

The  accumulation  of  a  large  volume  of  water  in  one  channel  by  the  city 
or  a  person,  imposes  a  duty  to  see  that  suitable  provision  is  made  for  the 
escape  of  waters  into  a  natural  watercourse  or  such  other  channel  as  will  carry 
it  off  without  injury.  If  such  accumulated  waters  therefore  are  cast  upon 
private  property  to  its  injury  on  account  of  the  insufficiency  of  a  drain  or 
sewer  the  city  must  respond  in  damages.2  Where  surface-water  is  collected 
in  gutters  and  conducted  to  the  mouth  of  a  sewer  which  is  insufficient,  and 
which,  by  reason  thereof,  flows  upon  private  property,  the  city  will  be  liable. 
The  construction  of  public  works  is  a  ministerial  act  and  must  be  performed 
in  a  skillful,  prudent,  and  careful  manner,  so  as  not  to  injure  private 
property.  A  city  is  liable  for  the  unskillful  manner  of  performing  work  upon 
public  improvements.  It  is  held  liable  for  negligence  in  grading  a  street  so 
as  to  turn  water  upon  abutting  owner's  land.3*  However,  it  is  submitted 
that  in  these  cases  there  must  have  been  elements  of  negligence  and  a  failure 
to  exercise  ordinary  care.4 

191.  Obstruction,  Diversion,  and  Repulsion  of  Surface-waters  by  Rail- 
roads.— One  of  the  most  common  obstructions  of  surface-waters  is  that  of 
railroad  embankments.     When  a  railroad  passes  across  or  through  a  valley 
and  over  the  lowlands,  it  is  essential  that  the  track  be  elevated  upon  embank- 
ments or  trestles,  so  as  to  escape  high  waters  due  to  freshets.     These  long, 
continuous  embankments  obstruct  the  passage  of  surface-  and  flood-waters 
and  greatly  increase  the  flow  through  natural  channels  of  the  stream. 

In  the  application  of  the  law  to  such  obstruction  and  detention  of  waters, 
and  in  the  absence  of  express  statutory  enactment,  railroads  are  liable  to 
the  same  extent  and  in  the  same  manner  as  individual  landowners  in  the 
management  and  improvement  of  their  land,  f  In  the  absence  of  a  special 
legislative  enactment,  they  are  liable  under  the  same  rules  and  laws  for  the 
detention,  obstruction,  and  diversion  of  surface-waters.5 

In  those  states  which  have  adopted  the  rule  of  the  common  law  J  any 

1  24    Amer.    &    Eng.    Ency.    Law   946,       Rep.   266;  Carll  v.  Northport  (Sup.),  42 
many  cases  cited.     But  see  Myers  v.  Nel-       N.  Y.  Supp.  576. 

son    (Cal.),    44    Pac.   Rep.    801,    and  see  3  Cotes  v.  Davenport,  9  la.  227;  Ellis 

Rutherford    v.    Holly    (N.  Y.),     n  N.  E.  v'.  Iowa  City,  29  la.  229. 

Rep.  818  [1887].  4  Wallace  v.  Musketine  (la.),  4  Green. 

2  Sullivan  v.  Phillips    (Ind.),   n   N.  E.  373- 

Rep.  300  [1887];    Baltimore    Brew.  Co.  5  Egener  v.   New  York,  etc.,  Ry.  Co. 

v.  Ranstead  (Md.),  28  All.  Rep.  273;  (Sup.),  38  N.  Y.  Sup.  319;  Yazoo,  etc.,  R. 
Jordan  v.  Benwood  (W.  Va.),  26  S.  E.  Co.  v.  Davis  (Miss.),  19  So.  Rep.  487. 

*  See  Sees.  186-188,  supra.  f  See  Sees.  112-121,  supra. 

\  See  Sees.  175-178.  infra. 


§191.          OPERATIONS  PRELIMINARY   TO    CONSTRUCTION.  12$ 

injury  which  results,  to  the  property  taken,  from  the  obstruction  and  holding 
back  of  surface-waters  by  the  construction  of  embankments  is  usually  con- 
sidered by  the  jury  or  commissioners  in  assessing  or  awarding  damages  for 
the  property  taken ;  but  when  no  part  of  the  property  of  the  plaintiff  has  been 
taken,  but  the  railroad  has  been  constructed '  upon  adjoining  property,  then 
he  will  not  have  been  awarded  damages,  and  he  has  been  held  entitled  to 
compensation  for  his  injuries. 

A  landowner  whose  property  is  flooded  by  the  obstruction  of  the  flow  of 
surface-waters  has  no  cause  of  action  for  injuries  suffered  in  those  states 
which  have  adopted  the  common-law  rule.  The  grant  of  a  right  of  way  for  a 
railroad  has  been  held  to  include  a  right  to  make  all  necessary  embankments, 
ditches,  etc. ;  and  if  the  flow  of  surface-water  from  the  remaining  lands  of  the 
grantor  be  obstructed  by  such  embankments  and  structures,  the  grantor 
cannot  recover  damages  from  the  company.  A  property  owner  should 
anticipate  such  obstruction  and  stipulate,  in  his  grant  of  a  right  of  way,  for 
openings,  culverts,  and  trestles  which  shall  provide  a  discharge  for  the 
drainage  of  his  land. l 

In  those  states  which  follow  the  rule  of  the  civil  law  *  there  is  no  pre- 
sumption that  when  a  railroad  acquired  its  right  of  way  compensation  was 
made  for  such  injuries  as  would  result  from  the  damming  back  of  the  surface- 
water  by  the  embankment  or  other  structures.  Railroad  rights  of  way  have 
been  held  subject  to  the  same  easement  or  servitude  of  drainage  for  such 
surface-waters  as  naturally  flow  from  the  higher  ground  as  are  the  lands  of 
adjoining  owners.  Any  obstruction  or  improper  interference  with  such  flow 
of  drainage  to  the  damage  of  higher  landowners  is  an  actionable  wrong. 

The  company  must  provide  adequate  drainage  of  the  adjoining  lands,  by 
the  construction  of  culverts,  ditches,  or  other  means,  and  such  culverts  and 
other  openings  must  be  of  ample  capacity  to  discharge  the  ordinary  and 
usual  flow  of  surface-waters.  They  need  not  be  designed  and  constructed  so 
as  to  provide  for  extraordinary  floods  and  excessive  rainfalls  which  cannot  be 
foreseen  by  reasonable  investigation.2  They  are  sometimes  required  to 
provide  drainage  by  express  statute.3 

A  cause  of  action  for  damage  to  land  overflowed  by  reason  of  the  con- 
struction of  a  railroad  bed  without  provision  for  draining  off  surface-water 
accrues  at  the  date  of  the  overflow  and  not  when  the  railroad  is  built.4 

A  railroad  company  which  permits  the  surface-water  flowing  on  other 
land  to  accumulate  on  its  right  of  way  is  liable  for  damage  done  to  other 

1  McCormick  v.  Kansas  City,  etc.,  R.  (Tex.),   24  S.  W.    Rep.    306;    Galveston, 
Co.,  57  Mo.  433  [1874].  etc.,  Ry.  Co.  v.  Parr  (Tex.),  28  S.  W.  Rep. 

2  24  Amer.  &  Eng.  Ency.  Law  950-953.  264. 

3  Dobbins    v.    Missouri,    etc.,    R.    Co.  4  Bonner  v.  Wirth  (Tex.),  24  S.  W.  Rep. 
(Tex.),  41  S.  W.  Rep.  62;  Bonner  v.  Wirth  306. 

*  See  Sees.  175-178,  supra. 


129  RIGHTS  IN  REGARD    TO    SURFACE-WATERS.  §   193. 

persons    by    allowing   it    to    be    discharged    on    their    land    in    accumulated 
quantities. l 

192.  Liability  for  Negligent  Construction. — In  general  a  railroad  com- 
pany must  exercise  reasonable  care  in  the  design  and  erection  of  its  structures, 
for  it  will  be  liable  if  the  construction  is  negligent.2    If  without  extra  expense 
a  culvert  or  a  trestle  could  have  been  erected  in  place  of  an  embankment 
which  has  caused  the  damage,  the  railroad  company  will  be  liable.3 

Where  a  railway  company,  for  the  purpose  of  properly  constructing  its 
roadbed,  takes  earth  from  one  part  of  its  premises  and  uses  it  upon  the  road- 
bed, thus  leaving  a  ditch  along  each  side  of  it,  in  the  usual  way  of  construct- 
ing railways  in  level  countries,  the  company  will  not  be  liable  to  an  adjoining 
landowner  through  whose  premises  a  right  of  way  has  been  properly 
condemned  and  paid  for,  on  account  of  injuries  caused  by  surface-water, 
even  though  the  effect  of  such  ditches  and  roadbed  may  be  to  prevent  surface- 
water,  which  before  flowed  upon  the  land,  from  coming  upon  it,  or  to  draw 
from  adjoining  land  surface-water  which  would  otherwise  remain  there,  or  to 
shed  surface-water  over  land  on  which  it  would  not  otherwise  go.4 

193.  Measure   of  Damages   Due   to   Surface-waters, — When  lands   are 
flooded  and  are  totally  destroyed  by  the  wrongful  act  of  another,  the  owner  is 
entitled  to  recover  actual  and  cash  value  of  his  land  at  the  time  of  its  destruc- 
tion, with  legal  interest  thereon  to  the  time  of  trial.5     If  the  land  has  suffered 
permanent  injury,  but  is  not  totally  destroyed,  the  owner  may  recover  the 
difference  between  the  actual    cash  value  immediately  preceding  the  injury 
and  its  value  thereafter,  with  legal  interest.      If  the  injury  be  temporary  only, 
the  owner  will  be  entitled  to  recover  the  amount  necessary  to  repair  the  injury 
and  put  the  land  in  the  condition  in  which  it  was  immediately  preceding  the 
injury,  with  interest. 

The  courts  have  not  invariably  followed  this  rule,  but  it  is  without  doubt 
the  general  measure  of  damages.  Thus  when  gravel  had  been  washed  down 
on  plaintiff's  land,  it  was  held  that  the  measure  of  damages  was  the  deprecia- 
tion in  value  of  the  premises  and  not  the  cost  of  removing  the  gravel.6 
When  the  injury  is  temporary,  but  deprives  the  owner  of  the  use  of  his. 
property  or  his  house,  he  may  recover  the  value  of  such  use  in  addition  to  the 
cost  of  repairs.  The  measure  of  damages  may  be  the  diminished  rental  of  the 
premises  during  the  continuance  of  the  wrongful  act.  The  probable  benefits. 

1  Borchsenius  v.  Chicago,  St.  P.  M.  &  19  So.  Rep.  199;  Shane  v.  Kansas  City,. 
O.    R.    Cc.    (Wis.),    71    N.  W.    Rep.    884,  etc.,  R.  Co.,  71  Mo.  237;  Sinai  v.  Railway 
citing  Bowlsby    v.  Speer,  31    N.  J.    Law  Co..  71   Miss.  547;   Henry  v.  Ohio  River 
351.  R.  Co.  (W.  Va.),  21  S.  E.  Rep.  863. 

2  St.    Louis,    etc.,   Ry.    Co.    v.   Craigo  4  Missouri    Pac.     Ry.    Co.    v.     Renfro 
(Tex.),   31   S.   W.    Rep.    207;    Galveston,  (Kan.),  34  Pac.  Rep.  802. 

etc.,  Ry.  Co.  v.  Parr  (Tex.),  28  S.  W.  Rep.  5Trinity,  etc.,  R.  Co.  v.  Schofield,  72 

264;    Texas,    etc.,    Ry.    Co.    v.    Padgett  Tex.  499. 

(Tex.),  37  S.  W.  Rep.  92;  McCormick  v.  6  Easterbrook  v.  Erie  R.  Co.  (N.  Y.),  51 

Kans.  C.,  etc.,  R.  Co.,  57  Mo.  433  [1874].  Barb.     94.     And  see  24   Amer.    &    Eng. 

8  Canton,  etc.,  R.  Co.  v.  Paine  (Miss.),  Ency.  Law  954-956. 


§   IQ4-  OPERATIONS   PRELIMINARY    TO    CONSTRUCTION.  130 

\to  be  derived  from  the  cultivation  of  the  soil  are  regarded  as  too  speculative 
and  uncertain  to  afford  a  criterion  of  damage,  and  no  recovery  can  be  had 
therefor.  If  the  owner  recover  for  the  injuries  sustained  to  his  realty,  crops, 
household  goods,  and  supplies,  he  may  not  also  recover  for  the  decrease  in  the 
rental  value  of  the  premises,  as  such  a  recovery  would  be  in  effect  a  double 
recovery  for  the  same  damage.1 

.When  plaintiff's  wall,  supporting  the  street  several  feet  above  his  lot,  and 
his  house  foundation  had  been  shoved  out  of  place  and  the  house  destroyed, 
by  defendant's  wrongful  obstruction  of  surface-water,  it  was  held  no  error  to 
charge  that  the  damages  cannot  be  exactly  calculated;  that  they  are  neces- 
sarily indefinite,  and  that  plaintiff  need  only  show  the  facts  from  which  the 
jury  can  fairly  estimate  the  injury  done;  that  the  cost  is  some  evidence  of 
value,  but  not  conclusive;  and  that  the  measure  of  damages  was  what  the 
improvements  were  worth  on  that  particular  lot,  less  the  value  of  the 
materials  remaining. 2 

The  owner  of  the  injured  premises  is  entitled  to  compensation  for  any 
diminution  in  the  market  value  of  the  land;  but  if  the  market  value  be 
increased,  and  the  building  be  damaged,  the  amount  of  increase  cannot  be  set 
off  against  the  damage  to  the  building.3 

A  landlord  may  not  recover  damages  and  inconvenience  suffered  by  his 
tenants,  but  only  for  the  recovery  to  the  buildings  and  premises  and  for  his  own 
actual  loss  suffered  The  landlord  has  no  such  interest  in  the  growing  crops 
of  his  tenants  as  will  enable  him  to  maintain  an  action  for  the  injury  to  them. 
If  crops  are  destroyed,  the  measure  of  damages  is  the  value  of  such  crops 
with  interest  from  the  time  of  destruction.  As  to  whether  the  injury  amounts 
to  the  total  or  only  the  partial  destruction  of  value,  whether  it  be  permanent 
or  temporary,  as  well  as  the  extent  of  the  injury  and  the  damages  consequent 
to  it,  are  all  questions  for  the  jury  under  proper  instructions.  If  the  overflow 
of  the  premises  create  sickness  and  render  them  unwholesome,  this  is  an 
element  of  damage,  and  evidence  of  these  facts  may  be  properly  admitted. 
If  malice  or  wantonness  on  the  part  of  the  defendant  be  shown,  the  party 
injured  may  recover  exemplary  as  well  as  compensatory  damages. 

194.  Measure  of  Damage  from  Diversion  of  Surface-waters. — If  per- 
manent injury  to  the  premises  result  from  diversion,  the  proper  measure^of 
damages  is  the  difference  between  the  market  value  of  the  property  before  the 
injury  and  that  after  it.4  In  some  cases  consideration  is  given  to  the  effect 
upon  its  present  use  and  upon  its  permanent  value.5 

Usually  the  damages .  assessed  are  the  difference  in  the  market  value 
immediately  before  and  immediately  after  the  diversion  of  the  stream,  if  the 

1  24  Amer.  &  Eng.  Ency.  Law  955.  700  [1897]. 

2  Lucot  v.  Rodgers  (Pa.  Sup.),  28  Atl.  *Shenango,  etc.,  R.  Co.  v.  Braham,  79 
Rep.  242.  Pa.  St.  447. 

3  Farkas  v.  Towns  (Ga.),  29  S.  E.   Rep.  5  Finley  v.  Hershey,  41  la.  389. 


!$!  RIGHTS  IN  REGARD    TO   SURFACE-WATERS.  §  1 95- 

injuries  are  permanent,1  and  not  the  amount  paid  for  repairs.2  In  an  action 
against  a  town  for  turning  water  from  a  highway  upon  abutting  land,  the 
measure  of  damages  was  held  to  be  the  actual  damage  done,  and  evidence  as 
to  the  difference  between  the  market  value  of  the  land  before  and  after  the 
injury  was  held  inadmissible.3 

The  measure  of  permanent  damages  caused  by  an  .overflow  due  to  a 
structure  has  been  held  to  be  "the  difference  in  the  value  of  the  land  in  its 
condition  when  the  right  of  action  accrued  and  what  its  value  would  have 
been  if  the  structure  had  been  skillfully  erected,"  and  not  "  the  difference  in 
value  of  the  land  before  the  road  was  built  and  the  value  after  it  was  built."  4 

Another  case  makes  the  measure  of  damages  such  a  sum  as  will  put  the 
land  in  as  good  condition  as  it  was  before  the  flooding,  together. with  com- 
pensation for  any  loss  of  use  during  the  time  it  was  rendered  unfit  for  occupa- 
tion.5 Proof  as  to  the  cost  of  restoring  the  land,  and  of  the  diminution  in 
its  market  value,  is  alike  admissible  in  an  action  for  damages,  as  either  measure 
is  likely  to  obtain  according  as  the  one  or  the  other  is  found  to  be  the  less.6 
The  damages  are  limited  to  those  sustained  prior  to  the  date  of  the  writ.7 

Where  plaintiff's  land  was  overflowed  and  damaged  by  reason  of  a  diver- 
sion of  surface-water  from  its  natural  outlet,  he  was  entitled  to  permanent 
damages.8 

195.  What  Damages  may  be  Assessed. — The  damages  assessed  must  be 
reasonable  and  proportionate  to  the  amount  suffered.  A  verdict  of  $500  for 
the  flowage  of  land  will  be  set  aside  on  appeal  where  the  land  flowed  was  not 
more  than  one  thirtieth  of  an  acre,  and  the  rental  value  was  $2.50  per  acre, 
and  the  land  had  been  overflowed  but  three  years.9  . 

Evidence  of  additional  expense  of  shipping  bricks  to  market  by  reason  of 
the  obstruction  of  plaintiff's  water  front  by  a  railroad  structure  (track)  was 
held  admissible  in  proving  damages.10  The  plaintiff  is  entitled  to  such 
damages  as  he  has  sustained. n 

When  land  has  been  overflowed  and  softened  and  made  muddy,  it  has  been 
held  that  the  value  of  stock  killed  and  injured  from  being  mired,  and  the 
reasonable  expense  of  guarding  and  treating  the  animals,  were  proper  items 
of  damage.12 

^ummings  v.  Toledo,   12  Ohio   C.  C.  App.   467. 

650;  Hanover  W.  Co.  v.  Ashland  I.  Co.,  6  Hartshorn  v.  Chaddock  (N.  Y.  App  ), 

84  Pa.  St.  279;  San  Antonio,  etc.,  R.  Co.  31  N.  E.  Rep.  997. 

v.  Mohl  (Tex.),   37   S.  W.   Rep.  22.     But  7  Williams    v.    Camden    «    R.    W.    Co. 

see    Bare    z/.    Hoffman,    79    Pa.    St.    71-  (Me.),  n  Atl.  Rep.  600  [1888]. 

2  Toledo  z>.  Grasser,  12  Ohio  C.  C.  520.  8  Parker  v.  Norfolk  &  C.  R.  Co.  (N.  C. ), 

3  Eshleman  v.  Township  of  Martic  (Pa.  25  S.  E.  Rep.  722. 

Sup.),  25  Atl.  Rep.  178.  9 Tucker  v.  Chicago  &  A.  R.  Co.,  2  Mo. 

4  Parker    v.   Norfolk  &   C.   R.  £o.  (N.       App.  Rep.  1328. 

C.I,  25  S.  E.  Rep   722.     But  see  Missouri,  10Rumsey  v.   New   York,    etc.,  R.   Co. 

etc.,  Ry.  Co.  v.  Graham  (Tex.),  33  S.  W.  (N.  Y.  App.),  30  N.  E.  Rep.  654- 

Rep.  =76,  andSzn  Antonio,   etc.,   R.  Co.  "  Rumsey  v.  N.Y.,  etc.,  R.  Co.,  ™pr*' 

v.  Mohl  (Tex.),  37  S.  W.  Rep.  22.  12  Hughes   v.  Austin  (Tex.),  33  S:  W. 

5  City  of  Keithsburg  v.  Simpson,  70  111.  Rep.  607. 


CHAPTER   XII. 
FOULING  AND  POLLUTION  OF  SURFACE-WATERS  AND  STREAMS. 

201.  Pollution  of  Streams  and  Bodies  of  Water, — An  owner  of  land  on  a 
natural  stream  has  a  property  right  in  the  water,  and  a  right  to  have  it  flow 
in  its  natural  state  over  and  along  his  land  in  its  usual  volume  and  purity. 
This  right  extends  to  the  quality  of  water  as  well  as  to  the  quantity. 1     If  the 
waters  of  a  stream  or  pond  are  fouled  by  the  operation  of  works,  mills,  or 
manufactories,  the  parties  operating  them  are  liable  in  damages  to  the  parties 
owning  the  water  rights  for  the  damages  suffered,   or  the  operation  of  the 
works  may  be  prevented  and  the  pollution  stopped  by  an  injunction. 

202,  What  Constitutes  a  Fouling  of  Waters. — "  It  is  not  every  impurity 
imparted  to  the  water,  however  small  in  degree,  that  will  be  the  subject  of  an 
injunction   [or  of  damages].      All  running  streams  are,  to  a  certain  extent, 
polluted;  and  especially  so  are  they  when  they  flow  through  populous  regions 
of  the  country,  and  the  waters  are  utilized  for  mechanical  and  manufacturing 
purposes.     The   washings    of   the    manured    and  cultivated    fields,    and   the 
natural    drainage    of    the    country,    of    necessity    bring    many  impurities  to 
the  stream,   but  these  and  like   sources   of  pollution  cannot,  ordinarily,    be 
restrained   by  the   court.2     Therefore  when   we  speak   of  the  right   of  each 
riparian   proprietor  to  have  the  water  of  a   natural   stream   flow  through  the 
land  in  its  natural  purity,  those   descriptive  terms  must  be  understood  in  a 
comparative   sense;   as   no   proprietor    does  receive,    nor   can   he  reasonably 
expect    to    receive,    the  water  in    a    state    of    entire    purity.      Any   use    that 
materially  fouls  or  adulterates  the  water,  or  the  deposit   or  discharge  therein 
of  any  filthy  or  noxious  substance  that  so  far  affects  the  water  as  to  impair 
its  value  for  the  ordinary  purposes  of  life,  will  be  deemed  a  violation  of  the 
rights    of    the    lower    riparian    proprietor,    for  which   he  will  be  entitled  to 
redress.      Anything  that  renders  the  water  less  wholesome  than  when  in  its 
ordinary  natural  state,  or  which  renders  it  offensive  to  taste  or  smell,  or  that 
is  naturally   calculated   to  excite  disgust  in  those  using  the  water  for  the 

1  10  Amer.  &  Eng    Ency.   Law  844;  25       macher,  36  Wis.  50;  Owens  v.  Lancaster 
id.  968;  Grey  v.  Paterson  (N.  J.  Ch.),  42       (Pa.),  37  Atl.  Rep.  858. 
Atl. 'Rep.  749  [1899];  Greene  v.  Nunne-  3Woodv.  Sutliffe,  2  Sim.  N.  S.  163. 

132 


133  FOULING   AND   POLLUTION  OF  SURFACE-WATERS.       §  203. 

ordinary  purposes  of  life,  will  constitute  a  nuisance,  for  the  restraint  of  which 
a  court  of  equity  will  interpose."  1 

"It  is  not  every  slight  pollution  of  the  waters  of  a  stream,  nor  every 
disagreeable  odor,  that  is  to  be  dealt  with  as  a  nuisance  to  be  put  down  by 
the  authority  of  the  law.  The  abatement  of  a  nuisance  does  not  necessarily 
mean  the  entire  and  absolute  removal  of  all  pollution  of  a  stream  and  all  dis- 
agreeable odor,  but  such  diminution  of  pollution  or  smell  as  to  render  it  such 
as  ought  fairly  and  reasonably  to  be  submitted  to."  2  However,  any  pollution 
of  a  natural  stream  which  renders  the  water  unfit  for  the  usual  and  proper 
purposes  for  which  it  may  be  used  is  a  nuisance,  and  will  be  prevented  by 
the  courts,  and  the  party  who  pollutes  or  contaminates  water  may  be  liable 
to  others  who  are  injured  by  his  acts.3 

203.  Sources   of  Pollution. — Instances  of   pollution   of  waters  are  very 
common  in  engineering  operations,  such  as  (i)  by  the  discharge  of  sewers; 
(2)  by  the  operation  of  mills,  factories,  and  works;  and  (3)  by  the  flow  of 
impure  waters  from  mines  and  tunnels.     These  will  be  taken  up  in  the  order 
named. 

204.  Pollution  by  the  Discharge  of  Sewers. — An  unreasonable  discharge 
of  sewage  into  a  stream  or  pond  to  the  injury  and  inconvenience  of  riparian 
owners  will  render  the  parties   authorizing  or  committing  the  act   liable  in 
damages  therefor.4     The  owner  of  a  private  waterway,  as  a  stream  or  a  mill- 
race5  or  a  fish-pond,6  may  recover  damages  for  injuries  to  his  water  rights, 
as  by  the  discharge  of  sewage  or   the   drainage   of   filthy   street-water   into 
them.7 

205.  Natural   Streams   Must   Receive   Natural   Drainage. — A    riparian 
owner  has  a  right  to  drain  surface-waters  from  his  land  into  a  natural  stream 
in  a  reasonable  manner.     He  is  not  limited  to  the  discharge  which  existed 
when  the  land  was  in  its  primitive  state,  if  he  does  not  surcharge  the  stream 
beyond  its  natural  capacity.      One  may  change  and  control  the  natural  flow 
of  surface-water  on  his  lands,  as  by  ditches  and  reservoirs,  and  increase  the 
flow  of  water  which  reaches  a  stream  if  he  does  so  in  the  reasonable  use  of 

1Alvey,  Justice,  in  Baltimore  v.  War-  Woodyear  v.  Schafer,  57  Md.  i;  Petersen 

renMfg.  Co.,  59  Md.  96;  Norton  z/.  Schole-  v.   Santa  Rosa  (Cal.),   51   Pac.  Rep.    557 

field,  9  M.  &  W.  665.  [1897]:  City  of   Paris  v.  Allred  (Tex.),  43 

2  Lord  Armitage,  in  Robinson  v.  Stew-  S.  W.  Rep.  62  [1897];  Watson  v.  Toronto, 

art,  ii  Macph.  (Sc.)  189.  etc.,   Water   Co.,  4  U.  C.  Q.  B.  158.     See 

3Chipman    v.    Palmer,    77    N.    Y.   51,  also  State  v.  Frieberg  (Ohio),  31   N.   E. 

sewer;    Sanderson  v.  Penn.  Coal  Co.,  86  Rep.  881. 

Pa.   St.  401;    Woodyear  v.   Schaefer,   57  5  Columbus  v.  Hydraulic  Woolen   Mills 

Md.  i;  Randolph  z'.Dobson  (Com.  PI.),  "  Co.,  33  Ind.  435. 

Montg.Co.  Law  Reptr.  197.  6 Smith    v.   Cranford  (Sup.),   32    N.  Y. 

4  Boston   Rolling    Mills  v.  Cambridge,  Supp.   375;  Seaman   v.    Lee,    10  Hun  (N. 

117  Mass.  396;  Kellogg  v.  New  Britain,  62  Y.)  607;  Fitzgerald  v.  Firbank  (C.  A.),  L. 

Conn.  232;  Nolans.  New  Britain  (Conn.),  R.  2  Ch.  96  [1897]. 

38  Atl.   Rep.  703  [1897];  Smith  v.  Cran-  7  Columbus  v.  Hydraulic  Woolen  MiUs 

ford  (Sup.),  32  N.  Y.  Supp.  375;   Good  v.  Co.,  supra. 
Altoona  (Pa.   Sup.),    29   Atl.    Rep.    741; 


§  2O6.          OPERATIONS   PRELIMINARY    TO    CONSTRUCTION.  134 

his  lands.  He  may  pump  unusual  quantities  of  water  into  a  stream,  as  from 
a  quarry  in  which  it  has  collected.1  * 

In  some  cases  this  principle  of  the  law  seems  to  have  been  extended  to 
the  discharge  of  sewers  into  streams.  It  has  been  held  that  a  properly  con- 
structed city  sewer  may  be  discharged  into  a  stream  which  is  the  natural 
drainage  of  the  land  on  which  the  city  is  built,  and  the  pollution  of  the  stream 
gives  no  right  of  action  to  a  lower  riparian  owner  whose  mill  property, 
constructed  and  operated  before  the  building  of  the  city,  is  injured  thereby.2 

In  California  it  has  been  held  that  a  720#-riparian  appropriator  of  the 
water  of  a  stream  has  no  right  of  action  for  the  pollution  of  the  water  of  said 
stream  by  a  prior  riparian  owner  who,  in  the  interest  of  sanitary  conditions, 
discharges  sewage  into  said  stream.3 

In  Texas  a  city  can  maintain  an  action  to  abate  a  nuisance  caused  by  the 
emptying  of  a  private  sewer  into  a  creek  running  through  the  city,  though  it 
has  no  interest  in  the  land  or  the  creek  in  question.4 

A  canal  company  may  maintain  an  action  of  tort  against,  a  city  for  con- 
structing sewers  and  drains  over  the  company's  lands  and  discharging  them 
into  the  canal,  even  though  the  city  be  authorized  by  its  charter  to  build  its 
drains  and  sewers  through  private  lands,  and  the  canal  was  constructed  in  the 
channel  of  an  ancient,  natural  watercourse.5  Some  cases  hold  that  it  must 
be  proved  to  be  a  nuisance.6 

The  use  of  a  stream  for  the  discharge  of  sewers  is  sometimes  authorized 
by  the  state  legislatures  or  by  city  councils. 7  Such  an  act,  however,  does  not 
license  a  city  to  create  a  nuisance  by  discharging  such  quantities  of  sewage  as 
to  pollute  the  river.8 

In  an  action  by  a  city  to  abate  a  nuisance  caused  by  the  emptying  of  a 
private  sewer  into  a  creek,  it  is  no  defense  that  the  city  authorities  authorized 
defendant  to  construct  the  sewer  and  empty  it  into  such  creek. 9 

206.  Degree  of  Pollution  that  will  be  Enjoined. — When  the  pollution  of 
the  stream  was  scarcely  perceptible  and  the  injury  trifling,  the  court  may 
refuse  an  injunction  to  restrain  the  discharge  of  sewage  into  a  river  and 

1  McCormick  v.    Horan,   Si  N.   Y.   86;  Llano    v.   County  of   Llano,  5  Tex.  Civ. 
Waffle  v.  N.  Y.  Cent.  R.  Co.,  53  N.  Y.  n.  App.    133,  following   City   of    Belton    v. 
And  see  Drains,  and  Sewers,  6  Amer.  &  Central  Hotel  Co.  (Tex.),  33  S.  W.  Rep. 
Eng.  Ency.  Law  2.  297. 

2  City  of  Richmond  v.  Test  (Ind.),  48  5  Locks  &  Canals  v.  Lowell  (Mass.),  7 
N.  E.  Rep.  610  [1897].     But  see  People  v.  Gray   223.       See   Nolan    v.    New   Britain 
McCune   (Utah),  46   Pac.   Rep.  658,  and  (Conn.),  38  Atl.  Rep.  703  [1897]. 
Jeanette  Borough  v.  Eschallier,  28  Pittsb.  6  Robb    v.    Village   of    LaGrange    (111. 
Leg.  J.  (N.  S.)  383  [1898],  and  Murphy  v.  Sup.),  42  N.  E.  Rep.  77,  57  111.  App.  386. 
Wilmington,  5  Del.  Ch.  281.  7  Public   Laws    New   Jersey,  Act  Feb. 

3  Conrad     v.     Arrowhead     Hotel    Co.  26,  1868,  p.  126. 

(Cal.),    37  Pac.    Rep.   386.     See  Cone   v.  8Grey   v.  Paterson  (N.  J.  Ch.),  42  Atl. 

Hartford,  28  Conn.  363.  Rep.  749  [1899]. 

4  City  of  Belton  v.  Baylor  Female  Col-  9  City  of  Belton  v.  Baylor  Female  Col- 
lege (Tex.),  33  S.  W.    Rep.  680;  City  of  lege  (Tex.),  33  S.  W.  Rep.  680. 

*  See  Sec.  184,  supra. 


135  FOULING   AND    POLLUTION  OF  SURFACE-WATERS.        §  2O;. 

dismiss  the  petition  with  costs.1  When,  however,  an  owner  of  land,  on  a 
stream  the  water  of  which  is  naturally  p^ure,  is  found  entitled  to  an  injunc- 
tion against  a  city  to  prevent  the  pollution  of  the  water  by  discharge  of  its 
sewage,  and  before  the  findings  are  prepared  the  case  is  opened  and  the  city 
alleges,  by  an  amended  answer,  that  it  has  about  completed  a  plant  by  which 
the  pollution  of  the  waters  will  be  prevented,  and  shows  that  the  sewage  is 
thereby  rendered  pure  and  inodorous,  but  does  not  show  that  it  is  rendered 
potable  and  fit  for  use,  the  water  will  be  presumed  to  still  remain  unfit  for 
use,  and  an  injunction  may  be  granted  to  prevent  the  turning  of  the  sewage 
into  the  stream.2  Likewise  when,  in  an  action  against  a  mining  company  to 
enjoin  discoloration  of  a  stream,  it  appeared  that  the  discoloration  was  caused 
by  clay  found  in  a  fissure  of  a  rock  intersected  by  the  shaft,  and  that  after 
continuing  several  months  it  began  to  abate,  so  that  defendant  was  able,  by 
the  use  of  a  settling-basin,  to  deliver  the  water  to  the  stream  in  a  clear  con- 
dition, and  that  such  was  the  condition  of  affairs  at  the  final  hearing,  six 
months  after  the  bill  was  filed,  and  it  also  appeared  that  defendant  denied 
complainant's  case  throughout,  and  claimed  the  right  to  throw  the  discolored 
water  into  the  stream,  and  that  there  was  some  danger  of  discoloration  in  the 
future,  it  was  held  that  the  decree  establishing  complainant's  rights  should 
include  a  provision  for  a  perpetual  injunction  against  discoloration.3 

207.  Reasonable  Use  of  Waters  of  a  Stream. — The  reasonableness  in 
such  cases  depends  upon  the  circumstances  of  each  particular  case.  In 
regard  to  manufacturing  purposes  there  must  certainly  be  more  or  less  refuse 
matter  which,  by  ordinary  care,  could  be  prevented  from  falling  into  the 
stream,  in  which  case  the  reasonableness  of  the  use  of  the  water  must  deter- 
mine the  right,  and  this  must  be  governed  by  the  extent  of  detriment  received 
by  the  riparian  proprietors  below.4  Another  circumstance  which  may  figure 
prominently  in  determining  the  reasonableness  of  the  uses  of  a  stream  is  the 
purpose  for  which  the  waters  of  the  stream  are  employed.  A  stream  which 
flows  into  a  reservoir  and  supplies  drinking-water  for  a  village  or  city  would 
not  permit  uses  which  might  be  tolerated  in  a  stream  used  for  manufacturing 
purposes.5  On  the  other  hand,  a  manufacturing  plant  which  required  soft 
water,  as  in  the  manufacture  of  woolens,  might  justly  complain  about  the 
introduction  of  chemicals  which  made  the  water  hard  and  thereby  destroyed 
the  quality  of  the  water  which  it  had  enjoyed  previously.  Water  from  a 
limestone-quarry  might  not  injure  it  for  domestic  or  farming  purposes,  and 
yet  totally  destroy  its  utility  for  certain  manufacturing  purposes. 


^tty.-Gen'l   v.  Gee  (Eng.),  10  Eq.  131,  297;  Townsend  v.   Bell  (Sup.),  24  N.  Y. 

See  Lingwood  v.  Stowmarket  Co.  (Eng.),  Supp.  193;  Owens  v.  Lancaster  (Pa.),  37 

i   Eq.  77,  336.  Atl.  Rep,  858;  People  v  McCune  (Utah), 

2  Peterson  v.  Santa  Rosa(Cal.),  51  Pac.  46  Pac.  Rep.  658. 

Rep.  557  [1897].  5  Commonwealth  v.  Russell  (Pa.  Sup.), 

3  Beach   v.  Sterling  I.  &    Z.  Co.  (N.  J.  33  Atl.   Rep.  709;    Kelley  v.  New   York 
Ch.),  33  Atl.  Rep.  286.  (Sup.),  27  N.  Y.  Supp.  164. 

4Lockwood  Co.   v.    Lawrence,  77  Me. 


§  208.          OPERATIONS  PRELIMINARY    TO    CONSTRUCTION.  136 

The  discharge,  into  a  stream,  of  water  made  muddy  by  the  ordinary  opera- 
tions of  engineering  work  has  been, held  a  sufficient  pollution  of  the  waters 
•of  the  stream  for  an  injunction  to  issue  to  prevent  it.1 

The  discharge  of  water  used  in  the  manufacture  of  lead  has  been  held  a 
nuisance  to  the  lower  manufacturer  of  paper. a  The  injury  from  the  discharge 
of  sewers  into  a  river  by  a  town  has  been  held  too  trifling  to  warrant  the  issue 
of  an  injunction.3  It  must  be  presumed  that  this  was  a  small  sewer  emptying 
into  a  large  river,  otherwise  it  cannot  be  considered  in  line  with  many  cases 
decided.  In  a  case  where  water,  though  pure  and  fit  for  primary  use,  had 
never  been  used  for  domestic  purposes,  the  court  refused  an  injunction  to 
prevent  the  discharge  of  a  sewer,  no  other  injury  or  damage  being  alleged 
except  that  it  killed  the  trout  and  occasioned  an  unwholesome  smell,  which, 
however,  was  not  proved  at  the  trial.4  However,  the  pollution  of  a  river  by 
the  discharge  of  city  sewage  gathered  from  a  large  area,  and  caused  to  flow 
into  the  stream  by  artificially  constructed  grades,  cannot  be  justified  as  a 
natural  and  reasonable  use  of  the  river. 5  Whether  the  use  of  a  stream  which 
•contaminates  its  waters  is  reasonable  or  not  is  a  question  of  fact  for  the 
jury.6 

Evidence  of  a  usage  to  discharge  waste  products  into  streams  is  not 
admissible  to  show  a  right  to  do  so  to  the  injury  of  other  riparian  owners.'7 

208.  Instances  of  Eeasonable  Use. — A  reasonable  use  of  waters  for  the 
discharge  of  refuse  material  will  be  illustrated  best  by  a  few  instances.  It  has 
been  held  to  be  a  reasonable  use  to  run  sawdust  and  refuse  from  a  sawmill 
into  a  stream.8  A  sanitarium  has  been  permitted  to  discharge  waters  into  a 
stream  which  had  been  used  for  purposes  of  bathing  patients.9 

When  a'  stream  in  its  natural  state  is  more  useful  to  all  the  owners  for 
stock  purposes  than  for  ordinary  domestic  uses,  it  has  been  held  that  an 
upper  owner  might  reasonably  use  it  and  could  maintain  a  hog-yard. 10  The 
reasonableness  of  such  a  use  seems  to  depend  somewhat  upon  the  number  of 
pigs  or  cattle  kept.  It  has  frequently  been  held  that  keeping  of  large  cattle- 
stables  or  hog-pens  in  the  vicinity  of  a  running  stream,  of  which  it  caused 
the  pollution,  was  a  nuisance  and  would  be  restrained.11  The  use  of  a  stream 

1  Ckowes     v.     Staffordshire     Potteries  Mining   Co.    (Col.    App.),    48   Pac.    Rep. 

(Eng.),  L.  R.   8  Ch.  126;  Beach    v.  Ster-  828. 

ling  I.  &  Z.  Co.  (N.  J.  Ch.),  33  Atl.  Rep.  8  Red    River    R.    Mills    v.    Wright,    30 

286.  Minn.  249;  Jacobs  v.  Allard,  42  Vt.  303. 

2Hodgkinson  v.  Ennon  (Eng.),  4  B.  &  9  Barnard    v.   Shirley  (Ind.),  34  N.    E. 

S.  229.  Rep.  600  [1893]. 

3Atty.-Gen'l  v.  Gee   (Eng.),  10  Eq.  131.  10  Hazeltine  v.  Case,  36  Wis.  391.     But 

4Lillywhite  v.  Trimmer,  16  L.  T.  N.  S.  see  People  v.  Elk  R.  M.  &  L.  Co.  (Cal.), 

318.  40  Pac.  Rep.  486.   But  see,  contra,  Smith  v. 

5  Grey  v.   Paterson  (N.  J.   Ch.),  42  Atl.  McConathy,   n   Mo.  518,  and  Baltimore 
Rep.  749.  v.  Warren  Mfg.  Co.  59  Md.  96. 

6  Hayes    v.    Waldron,    44    N.    H.     580;  n  Green  v.   Nunnemacher,   36  Wis.   50; 
Gavigan  v.  Atl.   Ref.   Co.  (Pa.),  40    Atl.  Davis   v.   Lambertson   (N.  Y.),    56   Barb. 
Rep.  834  [1898].  480;  People   v.    Elk    River  M.   &  L.   Co. 

7  Hayes  v.  Waldron,  44  N.  H.  580;  Suf-  (Cal.),  40  Pac.  Rep.  486. 
folk    Gold    Mining    Co.    v.    San    Miguel 


137  FOULING   AND    POLLUTION   OF  SURFACE-WATERS.       §  2OQ. 

for  general  farming  purposes  and  for  stock,  and  a  fouling  of  the  water  by  a 
stable  in  which  were  kept  and  fed  3750  head  of  cattle,  were  prohibited  by 
injunction  at  the  instance  of  a  lower  riparian  owner.1  In  some  states  it  is  a 
misdemeanor  to  keep  stock  housed  over,  or  on  the  borders  of,  any  stream 
used  for  a  water-supply.2 

The  discharge,  into  a  stream,  of  whey  from  a  cheese-factory,3  or  the 
refuse  from  a  starch  -factory,4  has  been  held  a  proper  cause  for  complaint. 
Though  a  stream  is  Contaminated  somewhat  by  natural  and  unavoidable 
drainage  of  surface-water  into  it,  yet  it  does  not  justify  the  discharge  of  an 
underdrain  through  a  cemetery.5  A  ferryman  who  has  run  a  ferry  across  a 
stream  for  forty  years  may  recover  damages  for  injuries  due  to  discharging  a 
sewer  just  above  his  slip  and  which  filled  it  with  sand  and  dirt,  preventing 
him  from  entering  it  with  his  boat.6 

209.  An  Injunction  or  Damages  may  be  Had  for  Pollution. — If  the 
pollution  of  a  stream  be  a  continuing  one,  or  amount  to  a  nuisance,7  the 
party  injured  may  proceed  either  at  law  or  in  equity,8  especially  when  such 
use  will  cause  irreparable  injury  or  endanger  a  landowner's  rights  by  adverse 
possession  if  allowed  to  continue.9 

Equity  cannot  restrain  the  maintenance  of  a  slaughter-house  on  a  stream 
flowing  through  a  city  merely  because  it  is  made  a  misdemeanor  by  Rev.  St. 
§  1418,  no  injury  to  plaintiff's  property  or  rights  being  shown.10  He  may 
have  an  injunction  to  prevent  the  pollution  of  a  stream  by  the  discharge  of 
sewage  of  a  city.11  The  injunction  will  not  fail  because  it  is  not  limited  to  a 
specified  part  of  the  stream.12 

A  water  company  which  supplies  water  to  a  city  and  owns  land  on  a  non- 
navigable  river,  from  which  a  portion  of  its  supply  is  derived,  is  a  riparian 
owner  in  the  full  sense  of  the  word,  and  as  such  may  perpetually  enjoin  a 
deposit,  in  the  stream,  of  substances  which  pollute  the  water.13 

1  Barton  v.  Union  C.  Co.  (Neb.),  7    L.       Y.  51. 

R.  A.    457    [1889].      And    see    Losey    v.  9  28   Amer.   &  Eng.  Ency.  Law  970510 

Buchanan,  51  N.  Y.  477.  id.  844. 

2  People  v.  Borda  (Cal.),  38  Pac.  Rep.  10Tiede  V.   Schneidt   (Wis.),    74   N.  W. 
niO.  Rep.   798  [1898]. 

3  Snow    v.    Williams    (N.  Y.),    16    Hun  n  Peterson  v.  Santa  Rosa  (Cal.), 51  Pac. 
468.  Rep.    557    [1897];     People    v.    San    Luis 

4Middlestadt  v.  Waupaca  S.  &  P.  Co.  Obispo  (Cal.),  48  Pac.  Rep.  723;  Nolan 

(Wis.),  66  N.  W.  Rep.  713.  v.  New  Britain  (Conn.),  38  All.  Rep.  703; 

5  Barrett  v.  Mt.  Greenwood  Cem.  Assn.  Stater/.  Frieberg  (Ohio  Sup.),  31  N.  E. 

(111.  Sup.),  42  N.  E.  Rep.  891,  reversing  Rep.  881;  Woodyear  v.  Schaefer,  57  Md. 

57  111.  App.  401.  i;  Lind  v.  San  Luis  Obispo  (Cal.),  42 

6 Sleight  v.  Kingston  (N.  Y.),  II  Hun  Pac.  Rep.  437.  The  value  of  affidavits 

594.  in  dissolving  an  injunction  is  discussed  in 

7  Crane  v.  Windsor,  2  Utah  248.  Tiede  v.  Schneidt  (Wis.),  74  N.  W.   Rep. 

8  Webb  v.  Portland  Mfg.  Co.,  3  Sumn.  798  [1898]. 

(U.  S.),  189;  Holsman  v.  Boiling  Sp.  Bl.  12  People  v.  San  Luis  Obispo  (Cal.),  48 

Co.,    14     N.  J.    Eq.    335;    Atty.-Gen'l   v.  Pac.  Rep.  723. 

Steward,   20    N.  J.    Eq.    415;    Barton   v.  13  Indianapolis  W.  Co.  v.  Amer.  S.   Co. 

Union  Cattle  Co.  (Neb.),  7   L.  R.  A.  457  (C.  C.),  53  Fed.  Rep.  970. 

[j§§9]'     See  Chipman  v.   Palmer,   77    N. 


§210,          OPERATIONS   PRELIMINARY    TO    CONSTRUCTION.  138 

210.  Purification   of  Sewage   Required,  —  Injunction    suits    frequently 
necessitate  the  erection  of  sewage-disposal  works  for  the  purification  of  the 
discharge  before  it  is  emptied  into  streams,  and  they  do  not  always  meet  the 
requirements  of  the  law.       A  purification  plant  which  renders    the  sewage 
clear  and  inodorous  has  been  held  not  to  answer  a  complaint  by  a  landowner 
that  his  water  was  pure  and  fit  for  use.      To  avoid  an  injunction  the  sewage 
must  be  purified  so  that  the  waters  are  potable  and  fit  for  use.1 

The  discharge  from  the  purification  works,  though  sterilized,  colorless,  and 
odorless,  must  not  contain  substances  which,  by  reason  of  their  combination 
with  other  substances  wrongfully  deposited  in  the  stream,  make  the  waters 
noxious  and  polluted.2 

211.  Rights  of  Riparian  Owners  cannot  be  Taken  Without  Compensa- 
tion.— In  some  states  power  is  given  to  cities  and  villages  to  appropriate  the 
water  of  a  stream  or  pond,  or  to  utilize  streams  for  the  discharge  of  sewers. 
Such  acts  would  be  illegal  unless  they  provide,  either  expressly  or  impliedly, 
for  compensation  to  riparian  owners.3     Under  an  act  providing  that  public 
sewers  shall  be  established  along  the  principal  course  of  drainage  to  such 
extent  and  under  such  regulations  as  may  be  provided  by  ordinance,  a  stream 
may  be  used  for  sewer  purposes  by  having  a  sewer  empty  into  it.4 

In  the  absence  of  legal  right  acquired  by  legislative  act,  grant,  or  prescrip- 
tion, a  municipal  corporation  which  causes  or  permits  its  sewage  to  pollute  a 
watercourse  is  guilty  of  nuisance,  for  which  damages  may  be  recovered  by  a 
landowner  who  is  entitled  to  its  use.5  It  is  no  excuse  that  the  public  health 
and  convenience  will  be  best  subserved  by  discharging  the  sewage  into  the 
stream. 6 

Damages  may  be  recovered  from  a  city  which  constructs  its  sewers  so  that 
they  empty  into  a  stream  and  render  unfit  for  use  all  the  waters  on  a  farm,  by 
reason  of  part  of  the  stream  going  underground  through  seams  and  fissures  in 
the  limestone  bed  of  the  stream.7 

212.  Right  to  Discharge  Sewage  Acquired  by  Prescription. — Riparian 
owners  are  entitled  to  every  ordinary  use  of  the  water  of  their  streams,  includ- 
ing the  right  to  apply  it  in  *a  reasonable  way  to  purposes  of  trade  and  manu- 
facture.    They  may  not  use  the  water  of  a  stream  in  an  unreasonable  manner, 
and  defile  the  same  in  such  a  way  or  to  such  an  extent  as  to  amount  to  the 
invasion  of  the  rights  of  other  riparian  owners.     The  latter  are  clearly  entitled 
to  redress  for  such  acts  by  a  suit  at  law  and,  in  case  the  nuisance  be  continued, 

1  Semble  Peterson  v.  Santa  Rosa  (Cal.),       cases  cited. 

51  Pac.  Rep.  55  [1897].  6  Atty.-Gen'l  v.  Hackney  Board  (Eng.), 

2  Morgan  v.  Danbury,  67  Conn.  484.  L.  R.  20  Eq.  626;  Kellogg  v.  New  Britain, 
3 28  Amer.  &  Eng.  Ency.  Law  976,  and      62    Conn.     232;    semble    Indianapolis    W. 

cases  cited ;  Brewster  v.  Rogers  Co.  42,  Co.  v.  Amer.  Strawboard  Co.  (C.  C.),  57 

App.  Div.  343  [1899],  logging  in  streams.  Fed.  Rep.  1000. 

4Joplin  Min.  Co.  v.  Joplin  (Mo.  Sup.),  7  Good  v.  Altoona  (Pa.  Sup.),  29  Atl. 

27  S.  W.  Rep.  406.  Rep.  741. 

6  28  Amer.  &  Eng.  Ency.  Law  974,  and 


139  FOULING   AND    POLLUTION  OF  SURFACE-WATERS.       §212. 

to  a  summary  relief  by  injunction.  This  is  the  law  established  by  a  great 
number  of  American  and  English  cases.  The  right  of  a  riparian  owner  to  a 
natural  stream  of  water  flowing  by  or  through  his  land  continues  except  so 
far  as  it  may  have  been  granted  away  or  lost  by  adverse  user.  No  adverse 
user  short  of  the  period  required  by  prescription  will  confer  any  exclusive 
right  to  the  use  of  running  water.  If  the  prior  owner  has  enjoyed  the  use  of 
water  in  any  particular  way,  as  for  manufacture  or  trade  for  the  prescriptive 
period  (twenty  years  in  some  states)  so  as  to  have  acquired  a  right  thereto,  he  is 
then  entitled  to  remain  undisturbed  in  such  use,  but  only  in  the  manner  and 
to  the  extent  defined  by  the  actual  enjoyment  of  the  use.  If  occupation, 
taking,  or  using  of  water  has  existed  for  so  long  a  time  as  may  raise  the  pre- 
sumption of  a  grant,  other  riparian  owners  must  take  a  stream  subject  to  such 
diminution  of  quantity  and  corruption  of  the  quality  as  he  has  enjoyed  for 
the  full  prescriptive  period.1 

A  city  or  person  may  acquire  a  right  to  the  use  of  a  stream,  as  for  the  dis- 
charge of  a  sewer,  by  prescription; 2  but  not  after  the  waters  of  the  stream  have 
been  taken  for  a  water-supply  for  a  city.3  The  amount  of  sewage  that  can 
be  discharged  will  be  limited  to  what  it  was  when  the  prescriptive  period 
commenced.  If,  as  is  usual,  the  pollution  has  substantially  increased  with 
the  growth  of  the  city,  either  gradually  or  suddenly,  and  within  the  prescrip- 
tive period,  then  the  right  to  pollute  the  stream  will  be  curtailed  by  the 
amount  of  the  increase.4  This  increase  in  the  discharge  of  sewage  from  a 
city  and  consequent  pollution  of  waters  may  be  anticipated  and  considered 
by  the  court  in  granting  an  injunction  restraining  such  contamination,  even 
though  the  pollution  at  present  does  not  amount  to  a  nuisance.5  To  consti- 
tute an  adverse  user  sufficient  to  sustain  a  right  by  prescription  to  maintain  a 
nuisance,  it  must  have  been  continued  in  substantially  the  same  way  and  with 
equally  injurious  results  for  the  entire  statutory  period.6 

A  prescriptive  right  to  pollute  a  stream  will  be  limited  also  to  the  same 
kind  and  class  of  impurities  which  have  been  discharged  into  the  stream  for 
the  full  statutory  period.  An  allegation  that  defendant  had  by  prescription 
acquired  a  right  of  "causing  to  flow  into  the  waters  .  .  .  factory-  and  house- 
sewage,  drainage,  and  storm-  and  surface-waters  from  the  city's  streets,"  is 
not  a  sufficient  answer  to  a  complaint  that  "large  quantities  of  acids, 
impure  matter,  sewage,  and  other  noxious  and  impure  substances  were  caused 
to  flow  into  a  stream  so  as  to  render  the  waters  of  the  said  brook  filthy." 
The  defense  was  held  not  to  include  the  whole  use  complained  of,  and  that 

^easley  v.  Shaw,  6  East  208.  Mills  Co.  v.  Smith  (Miss.),  n  So.  Rep. 

2  3  Kent's   Com.  446;    Kranz   v.   Balti-       26. 

more,  64  Md.  491.  5  Goldsmid     v.     Tunbridge     Commrs. 

3  Martin  v.  Gleason,  139  Mass.  183.  (Eng.),  I  Eq.  161,   i  Ch.  349. 

4  Blackburne  TJ.  Somers,   L.  R.  5  Ir.  i;  6  Matthews  v.   Stillwater  Co.    (Minn.), 
Goldsmid  v.  Tunbridge  Commrs.,   i  Eq.  65  N.  W.  Rep.  947;  Woodworth  v.  Gene- 
161;  Woodworth    v.  Genesee   Paper  Co.  see  Paper  Co.  (Sup.),  46  N.  Y.  Supp.  99. 
(Sup.),  46   N.   Y.    Supp.  99;    Mississippi 


§213-          OPERATIONS  PRELIMINARY    TO    CONSTRUCTION.  140 

plaintiff  could  recover  for  uses  alleged  in  the  complaint  and  not  included  in 
the  defense.1 

The  pollution  of  a  stream  supplying  water  to  a  city  is  a  public  nuisance, 
and  therefore  the  right  to  empty  a  sewer  into  such  stream  cannot  be  acquired 
by  prescription.2  The  rule  that  a  right  to  maintain  a  nuisance  cannot  be 
acquired  by  prescription  applies  only  to  public,  and  not  to  private,  nuisances.3 

Where  a  city  uses  a  stream  as  an  open  sewer,  it  cannot  acquire  by  pre- 
scription a  right  to  neglect  its  duty  to  keep  open  the  channel  and  to  remove 
accumulations  of  refuse  therein.4 

Where  a  city,  under  power  of  eminent  domain,  takes  the  waters  of  a  pond 
and  streams  and  the  land  about  the  pond  for  the  supply  of  pure  water,  it  may 
take  also  the  prescriptive  right  of  landowners  to  pollute  the  waters  of  the 
streams  flowing  into  the  lake  and  through  the  lands  taken.  The  city  can  even 
take  the  prescriptive  right  to  pollute  the  waters  of  one  of  the  streams  without 
taking  the  land  through  which  it  flows.  An  instrument  that  recites  that  a  city 
took  all  the  waters  of  a  pond,  "and  other  brooks  and  streams,  whether 
permanent  or  temporary,  entering  into  the  same,  .  .  .  and  all  the  water  rights 
thereunto  belonging  or  in  any  wise  appertaining,  for  the  sole  use  and  benefit 
of  the  city,"  takes  the  right  to  foul  the  waters  of  any  of  the  streams  existing 
at  the  time  of  filing  the  instrument.5 

An  instrument  granting  permission  "for  all  future  time"  to  a  manufac- 
turing company  to  flow  obnoxious  matter  into  a  certain  stream,  which 
describes  the  land  through  which  the  stream  flows  as  in  a  certain  county, 
adjacent  to  the  manufacturing  company's  works,  and  is  supported  by  a 
valuable  consideration,  is  sufficient  to  create  an  easement.6 

213.  Parties  to  Suit  to  Prevent  Pollution, — The  facts  that  the  riparian 
owner  purchased  the  land  after  the  nuisance  was  established,  and  that  his 
motives  were  bad,  or  that  his  object  in  making  the  purchase  was  to  prevent 
the  defendant  from  discharging  its  waste  into  "the  stream,  to  his  great  injury, 
are  not  material  to  the  case.  One  has  a  perfect  right  to  buy  land,  and  takes 
all  the  vendor's  rights  in  a  stream  appurtenant  to  the  land  and  is  entitled  to 
enforce  them.7  Even  when  the  defendant  was  the  vendor  and  had  a  prescrip- 
tive right  to  discharge  impurities  into  the  stream,  it  was  held  that  the 
purchaser  could  restrain  the  further  contamination  of  the  waters;  that  the 
vendor  must  have  reserved  an  express  right  to  foul  the  stream,  and  not  having 
done  so,  it  would  be  prohibited.8 

1  Nolan    v.    New     Britain    (Conn.),    38  5  Martin  v.  Gleason,  29  N.  E.  Rep.  664, 
Atl.  Rep.  703.  139  Mass.  183. 

2  Kelley  v.  City  of  New  York  (Sup.),  27  6  Nunnellyz/.  Southern  Iron  Co.  (Tenn.), 
N.  Y.  Supp.  164;  Litchfield  v.  Whitenack,  29  S.  W.  Rep.  361. 

78  111.  App.  364.  7Townsend    v.    Bell   (Sup.),   17  N.    Y. 

3  Drew   v.   Hicks  (Cal.),  35   Pac.    Rep.       Supp.  210. 

563.  8Crossley  &  Sons  v.  Lightowler,  3  Eq. 

*  Owens  v.  City  of  Lancaster  (Pa.  Sup.),       279,  2  Ch.  478. 
37  Atl.  Rep.  858. 


141  FOULING   AND   POLLUTION   OF  SURFACE-WATEJRS. 

In  a  suit  by  riparian  owners  to  enjoin  the  discharge  of  city  sewage  into  a 
river,  the  owners  of  the  houses  connected  with  the  sewers  are  not  necessary 
parties.  Owners  of  different  parcels  of  land  on  the  banks  of  a  river  may  join 
as  plaintiffs  to  enjoin  the  discharge  of  sewage  polluting  the  river. l 

The  defendant  having  denied  all  the  allegations  that  he  was  polluting  or 
had  polluted  a  stream,  it  is  error  to  put  the  burden  of  proof  upon  him  with- 
out any  inquiry  as  to  whether  the  waters  were  polluted  by  him.2 

214.  Pollution  of  Stream  by  Joint  Wrongdoers. — When  several  parties 
or  persons  acting  independently  of  one  another  discharge  or  deposit  refuse 
matter  and  debris  into  a  stream,   fouling  the  same,  they  all  may  be  joined  as. 
defendants  in  an  action  to  restrain  the  nuisance.3     It  is  error  to  hold  in  such 
case  that  any  one  person  is  liable  for  the  combined  results  of  all  the  deposits, 
or  fouling.      If  others  on  the  stream  have  contributed  to  the  pollution,  the 
defendant  should  not  be  held  liable  for  the  injury  done  by  them.     His  part 
of  the  wrong  done  must  be  determined  by  the  best  proof  the  nature  of  the 
case  affords.4     It  may  be  shown  that  other  persons  were  making  deposits  in 
the   stream   above    plaintiff's   property,    defendant  not    being  liable  for   the 
separate  wrong  of  another.5     If  the  plaintiff  himself  contributes  to  the  pollu- 
tion  and   injuries  of  which  he  complains,  he  cannot  recover  from  an  upper 
riparian  owner  for  his  part  in  the  wrong.6 

In  a  suit  by  a  riparian  owner  to  enjoin  the  pollution  of  a  stream,  the  fact 
that  part  of  the  stream  is  in  a  measure  polluted  by  others  besides  the  defend- 
ant,7 or  that  the  stream  was  always  more  or  less  polluted  from  other  mines, 
and  from  the  washing  of  plowed  fields,  public  roads,  and  railroad  embank- 
ments,8 is  no  reason  why  a  particular  cause  or  source  shall  not  be  restrained.9 

215.  Liability  for  Defective  Sewers. — A  city  must  construct  its  sewers  so 
that  they  shall  not  become  nuisances,10  and  is  liable  if  they  be  so  unskillfully 
built  that  they  become  obstructed  and  cause  water  to  set   back  and  flow 
plaintiff's  lands  or  cellars.11 

The  pollution  of  a  stream  may  be  the  necessary  result  of  the  construction 
of  a  sewer,  and  may  have  been  anticipated;  or  it  may  arise  from  defects  in 
the  design  of  the  system  or  the  faulty  construction  of  the  sewer  itself.  In 

1  Grey  v.  City  of  Paterson  (N.  J.  Ch.),  7Townsend    v.    Bell  (Sup.),   17    N.    Y. 
42  Atl.  Rep.  749  Supp.  210;  McKeon  v.  See,  51  N.  Y.  300. 

2  Tennessee   C.   I.   &  R.   Co.  v,  Hamil-  8  Beach  v.  Sterling  I.  &  Z.  Co.  (N.   J. 
ton    (Ala.),    14    So.    Rep.    167.     See   also  Ch.),  33  Atl.   Rep.  286;   Hill  v.  Smith,  32 
Tiede  v.  Schneidt  (Wis.),  74  N.  W.Rep.7Q8.  Cal.  166. 

3  Lockwood  v.  Lawrence,  77  Me.  297.  9  Blair  v.  Deakin  (Eng.),  57  L.  T.  N.  S. 
4Blaisdell    v.    Stephens,    14     Nev.    17;       522;  Crossley   v.    Lightowler  (Eng.),    L. 

Gould    v.   Stafford   (Cal.),    18    Pac.    Rep.  R.  2  Ch.  478;  St.    Helens  S.   Co.   v.   Tip- 

879;  Little  Schuylkill  Nav.   Co.   v.  Rich-  ping,   n    H.    L.    Cas.    642.     See  Tiede  v. 

ards,  57   Pa.   St. '142;  Seely  v.  Alden,  61  Schneidt  (Wis.),  74  N.  W.  Rep.  798. 

Pa.  St.  306;  Chipman  v.  Palmer,  77N.Y.  10 Conrad  v.  Ithaca,  16  N.  Y.  161. 

51  [1879].  nRome  v.    Portsmouth,  56  N.   H.   291; 

5  Tennessee   Coal,    Iron    &    R.    Co.    v.  Jacksonville  v.  Lambert,  62  III.  519;  New 
Hamilton  (Ala.),  1480.  Rep.  167.  Albany  v.   Lines  (Ind.   App.),   51   N.    E. 

6  Ferguson  v.   Firmenich  Mfg.   Co.,  77  Rep.  346  [1898].     And  see  Cohen  v.  Belle- 
Iowa  576.  not  (Va.),  32  S.  E.  Rep.  455  [1899]. 


§  2 1 6.          OPERATIONS  PRELIMINARY    TO    CONSTRUCTION.  1^2 

either  case  the  city  or  owner  of  the  sewer  is  liable  for  the  unlawful  fouling  of 
the  stream,  and  even  when  the  discharge  of  a  sewer  into  a  stream  is  authorized 
by  act  of  legislature  it  or  he  may  be  held  responsible  if  the  pollution  complained 
of  is  caused  by  the  faulty  construction  or  unreasonable  use  of  the  sewer.1 

216.  Pollution  of  Watercourses  by  Mills,  Factories,  and  Works, — The 
pollution  of  streams  by  the  operation  of  large  industrial  plants  is  one  of  the 
most  frequent  causes  of  litigation.  The  large  amount  of  capital  invested,  and 
the  great  benefit  which  such  manufacturing  establishments  are  to  a  com- 
munity, make  such  acts  seem  tolerable  when  they  would  not  otherwise  be  so. 
To  have  a  mill,  employing  thousands  of  men  and  women,  shut  down  and  a 
great  industry  closed  because  some  small  farmer  or  fisherman,  owning  perhaps 
a  few  acres  of  wild  land,  has  suffered  an  imaginary  loss  in  drinking-water  for 
his  small  herd  of  cattle,  or  in  his  enjoyment  of  fishing  a  few  times  a  year, 
seems  the  rankest  injustice.  Yet  these  cases  are  made  the  subject  of  suits  for 
blood-money  by  short-sighted  landowners  and  lawyers  wanting  practice.  Still, 
however  much  money  may  have  been  invested,  or  however  much  the  com- 
munity may  suffer  as  against  the  right  of  a  riparian  proprietor  to  have  water 
flow  in  its  natural  purity,  there  is  no  public  policy  in  favor  of  industrial 
development  which  will  justify  the  erection  and  operation  of  a  factory  that 
pollutes  the  water  of  a  stream,  unless  the  most  modern  appliances  are  used 
to  prevent  it.'4  It  is  no  defense  to  a  bill  by  a  riparian  proprietor  to  restrain 
the  pollution  of  a  stream  by  discoloration,  that  the  discoloration  was  the 
natural  and  necessary  result  of  mining  operations  prosecuted  in  the  ordinary 
way.3  It  is  a  principle  of  the  common  law  that  the  erection  of  anything  in 
the  upper  part  of  a  stream  of  water  which  poisons,  corrupts,  or  renders  it 
offensive  and  unwholesome  is  actionable;  and  this  principle  not  only  stands 
with  reason,  but  is  supported  by  unquestionable  authority,  ancient  and 
modern. 

Mills  and  factories  using  drugs  and  chemicals,  as  dyestuffs,  are  a  very 
common  and  dangerous  source  of  contamination,4  which  may  be  restrained 
by  injunction.5 

With  respect  to  the  discharge  of  chemicals  into  a  stream,  it  has  been  held 
that  the  one  who  is  the  proximate  or  immediate  cause  of  the  pollution  of  the 
waters  may  be  enjoined  where  the  obnoxious  effect  is  caused  by  the  combina- 
tion of  the  stuff  discharged,  which  is  harmless  and  inoffensive  alone,  with  other 

*28  Amer.  &  Eng.  Ency.  Law  976,  and  4  Holsman  v.  Boiling  Springs  B.  Co., 

Massachusetts  cases  cited ;  Grey  v.  Pater-  14  N.  J.  Eq.  335;  Crossley  v.  Lightowler 

son  (N.  J.  Ch.),  42  Atl.   Rep.  749  [1899].  (Eng.),  L.  R.  2  Ch.  478.     Set  also  (Eng.) 

See  Litchfield  v.  Southworth,  67  111.  App.  9  Rep.  59;  (Eng.)  Co.  Litt.  200  b. 

398  [1896].  5  Richmond  Mfg.  Co.  v.  Atl.  De  Laine 

2  Indianapolis  Water  Co.  v,  American  Co.,  loR.  I.  106;  Townsend  v  Bell  (Sup.), 
Strawboard    Co.  (C.  C.),    57    Fed.    Rep.  17  N.  Y.  Supp.  210;  Mississippi  Mills  Co. 
1000;    Mississippi    Mills    Co.    v.    Smith  v.  Smith  (Miss.),  n  So.  Rep.  26;  Howell  v. 
(Miss.)  n  So.  Rep.  26.  McCoy  (Pa.),  3  Rawle  268;  Cushman  v. 

3  Beach   v.  Sterling   Iron   &  Zinc   Co.  Highland  Ditch  Co.  (Colo.  App.),  33  Pac. 
(N.  J.  Ch.),  33  Atl.  Rep.  286.  Rep.  344. 


143  FO ULING   A ND    POLLU TION  OF  S URFA CE-  WA  7'ERS.       §  2 1 8 . 

substances  wrongfully  deposited  in  the  stream  by  other  persons.1  Poisonous 
and  corrosive  substances  which  injure  the  machinery  of  a  lower  riparian  owner 
may  not  be  discharged  into  a  stream ; z  nor  those  that  render  it  unfit  for 
special  processes  of  manufacture,  such  as  carpet-weaving  and  dyeing3  or 
paper-making.4 

An  upper  landowner,  who,  by  drilling  a  well  and  pumping,  has  increased 
the  aggregate  quantity  of  water  discharged,  and  changed  its  character  from 
fresh  to  salt,  whereby  it  became  more  injurious  to  the  lower  land,  is  liable  to 
the  owner  of  the  latter  for  such  injuries,  though  such  water  is  discharged 
in  the  lawful  use  of  his  land,  unless  he  could  not  prevent  the  injury  by 
reasonable  care  and  expenditure.5  But  one  who  sinks  an  artesian  well  on  his 
own  land  and  uses  the  water  to  bathe  the  patients  in  a  sanitarium  erected  by 
him  on  said  premises  was  held  not  liable  to  injunction  and  damages  for 
allowing  the  water,  after  such  use,  to  flow  into  a  stream  which  crosses  the 
land  of  an  adjoining  owner  and  is  the  only  natural  and  available  outlet.6 

217.  Pollution   from   Mining    Operations. — Mining    operations    usually 
furnish  large  quantities  of  refuse  material  in  the  form  of  screenings,  tailings, 
and  discoloration.      Such  refuse  cannot  be  discharged  into  running  streams, 
destroying  their  usefulness  to  other  riparian  owners,7  as  in  filling  up  the  channel 
and  causing  the  debris  to  be  deposited  on  land.8    If  such  refuse  be  carried  upon 
others'  lands  by  the  natural  flow  of  the  stream,  though  in  times  of  high  water 
during  rainy  seasons,  the  mine-owner  will  be  held  liable  for  the  injury.9     It 
is  no  excuse  that  the  refuse  was  deposited  in  the  stream  to  make  room  for  a 
retaining-wall  to  prevent  a  large  bulk  of  the  refuse  from  being  washed  down 
on  the  land  of  the  owners  below.10 

218.  Instances   in    Befouling    a   Stream. — Water  made  muddy  by  the 
construction  of  a  water-works  reservoir  and  dam,  to  the  injury  of  the  owner 
of  dye-works,  may  be  a  nuisance.11     Deposits  of  materials  (coal-slack)  which 
constituted  a  railroad  embankment  have  been  held  to  be  nuisances. la     Sand 
and  silt  contained  in  surface-water  discharged  into  streams  have  been  held 
not  deleterious  matter  within  the  English  Public  Health  Act  1875,  §  17,  pro- 

1  M-organ  v.  Danbury,  67  Conn.  484.  Fed.  Rep.  384. 

2  Pennington  v.   Brinsop   H.  C.   Co.,  5  9  Robinson  v.  Black  D.  C.  Co.,  57  Cal. 
Ch.  Div.  769;    Lingwood  v.  Stowmarket  412;  Tennessee  Coal  I.  &  R.  Co.  v.  Ham- 
Co.  (Eng.),  L.  R.  i  Eq.  77.  ilton  (Ala.),  14  So.  Rep.  167;  Hindson  v. 

3  Carhart  v.  Auburn  Gas.  Lt.   Co.  (N.  Markle  (Pa.  Sup.),  33  Atl.  Rep.  74;  Hill 
Y  ),  22  Barb.  297;  Richmond  Mfg.  Co.  v.  v.  Smith,  32  Cal.  166. 

Atl.  De  Laine  Co.,  10  R.  I.  106.  10  Elder  v.  Lykens  Val.  Coal  Co.  (Pa. 

4  Hodgkinson  v.  Ennon,  4  B.  &  S.  229.  Sup.),  27  Atl.  Rep.  545. 

5  Pfeiffer  v.  Brown  (Pa.  Sup.),  30  Atl.  "  Clowes  v.  Sterling  I.  &-Z.  Co.  (N.  J. 
Rep.  844.  Ch.),  33  Atl.  Rep.    286;  semble  Beach   v. 

6  Barnard   v    Shirley  (Ind.),  47   N.  E.  Sterling  I.  &  Z.  Co.  (N.  J.  Ch.),  33  Atl. 
Rep.  671  [1897];  S.C.,  34  N.  E.  Rep.  600  Rep.  286,  discolorations  from  clay.     See 
[1893].  Rarick   v.  Smith  (Com.  PL),  17  Pa.  Co. 

7  28  Amer.  &  Eng.  Ency.  Law  977.  Ct.  Rep.  627. 

8  Tennessee    Coal,    Iron   &    R.   Co.    v.  "  Wabash    R.    Co.   v.   Sanders,  58    111. 
Hamilton  (Ala.),  14  So.  Rep.  167  [1893];  App.  213. 

Montana  Co.   v.   Gehring  (C.  C.  A.),   75 


§  2 1 9-          OPERATIONS  PRELIMINARY   TO    CONSTRUCTION.  144 

hibiting  the  discharge  of  surface-waters  containing  foul  or  noxious  matter 
which  will  deteriorate  the  quality  and  purity  of  the  waters  of  a  stream,  where 
the  stream  is  already  charged  therewith.1  Light  flocculent  matter  discharged 
into  navigable  waters,  and  carried  in  suspension  into  the  ocean,  may  be  a 
nuisance  where  Congress  has  prohibited  the  putting  such  matter  into  such 
waters. 8 

219.  Injunction   Granted  when  No   Damages  are   Suffered. — It  is  fre- 
quently held  that  a  riparian  owner  need  not  have  suffered  actual  damages  in 
order  to  be  entitled  to  an  injunction  to  prevent  the  befouling  and  discoloring 
of  a  stream,  where  such   use  of  a  stream,  if  not  stopped,  may  grow  into  a 
right   by   prescription.3     Moreover,    the   rights  of  a  riparian  owner  are   not 
limited  to  the  present  modes  of  use  and  enjoyment.      It  is  impossible  to 
foresee  what  use  the  owner  or  his  successors  in  title  may  resort  to,  or  the 
extent  of  damages  which  would  compensate  him  or  them  for  the  injuries  which 
the  continued  pollution  might  cause  to  such  new  modes  of  enjoyment.4 

In  determining  the  right  to  an  injunction  to  prevent  further  pollution, 
the  court  will  consider  the  consequences  of  an  injunction  and  the  real  equities 
of  the  case.  If  the  injury  is  only  occasional  and  the  damage  is  small  and 
accidental  rather  than  a  probable  and  necessary  consequence,  an  injunction 
will  be  denied.5 

A  city  will  not  be  enjoined  from  continuing  to  discharge  sewage  into  a 
river  until  it  has  had  a  reasonable  time  to  provide  other  means  to  dispose 
thereof.6  Pending  a  hearing,  an  injunction  may  be  granted  restraining  the 
city  from  increasing  the  discharge,  where  the  potableness  of  the  water  is 
destroyed  and  noxious  smells  arise  from  the  polluted  water  which  produce 
general  discomfort  to  the  inhabitants  along  the  river.6 

220.  Person  Injured  Not  Kequired  to   Prevent  Pollution. — The  lower 
riparian  owner  is  not  without  remedy  because  he  has  failed  to  take  due  pre- 
cautions to  prevent  the  injury  resulting*  from  the  discharge  of  impurities  into 
the  stream,    or  that  he  has  been  guilty  of    negligence   contributing  to  the 
injury,  where  there  is  no  duty  imposed  upon  him  to  prevent  it.7     Such  a  plea 
is  no  defense  to  an  action.  9 

A  city  is  not  bound  to  maintain  structures  to  preserve  the  purity  of  its 
water-supply.  And  it  is  no  defense  to  a  bill  for  an  injunction  to  prevent  a 
person  from  polluting  such  a  source  of  water-supply  that  the  city  has  already 
built  a  dam  which  prevents  such  pollution.8 

1  Durant  v.   Branksome,  etc.    (C.   A.),       Eng.),  5  Ch.  Div.  769. 

L.  R.  2  Ch.  291  [1897].  5  Peterson  v.  Santa  Rosa,  51  Pac.  Rep. 

2  United   States   v.   N.  B.   Gravel-Min.       557. 

Co.  (C.  C.  Cal'.),  8 1  Fed.  Rep.  243.  6  Grey  v.  City  of  Paterson  (N.  J.    Ch.)r 

8  Townsend    v.    Bell   (Sup.),   17    N.  Y.  42  Atl.  Rep.  749  [1899]. 

Supp.  210;  Ware  v.  Allan,  140  Mass.  513.  7  Tennessee  Coal,  I.  &  R.  Co.  v.  Ham- 

And  see  Gould  v.   Eaton  (Cal.),  49  Pac.  ilton  (Alal),  14  So.  Rep.  167. 

Rep.  577.  8  Martin  v.  Gleason,  139  Mass.  183. 
*  Pennington     v.    Brinsop     Hall     Co. 


145  FOULING   AND    POLLUTION  OF  SURFACE-WATERS.        §  222. 

If  the  expense  of  preventing  the  damage  is  small  in  proportion  to  the 
gain  to  the  upper  landowner,  and  the  person  damaged  has  taken  steps  to  abate 
the  nuisance,  the  upper  landowner  should  pay  the  expense,  if  it  is  reasonable 
in  regard  to  the  lower  owner's  rights,  however  large  it  may  be  m  actual 
amount,  or  he  should  respond  in  damages.1  An  appropriator  of  water  who  is 
being  injured  by  the  unlawful  acts  of  another  user  cannot  be  compelled  to 
protect  himself  from  such  injury  at  his  own  cost,  on  the  ground  that  he  can 
do  so  at  less  expense  than  must  be  incurred  by  the  wrongdoer  for  its  preven- 
tion.2 

A  riparian  owner  has  no  right  to  have  the  sewage  of  a  city  turned  into  the 
stream  above  his  mill,  instead  of  being  diverted  elsewhere,  although  from  one 
third  to  one  half  of  the  stream  has  been  taken  by  the  city  without  right  and 
has  entered  the  sewerage  system ;  but  the  disposal  of  the  sewage  is  under  the 
control  of  the  city,  and  the  remedy  of  the  riparian  owner  for  wrongfully  taking 
the  water  is  by  action  for  damages  or  by  injunction.  3 

221,  Pollution  by  Refuse  from  Gas-works. — The  discharge  of  tar  and  oily 
substances  from  gas-works  to  the  detriment   of  other  manufactures  on    the 
stream,  such  as   carpet-works,4  will  be  enjoined  and  damages  assessed.      A 
city  has  been  held  liable  for  damages  to  a  well  from  the  erection  of  a  gas- 
reservoir.  5 

In  an  action  for  damages  suffered  from  pollution  of  a  stream,  as  by 
refuse  from  a  gas-works,  it  is  no  excuse  that  the  soil  is  pervious  and  the  waters 
of  the  stream  percolate  it  without  the  agency  or  fault  of  the  defendant.6 

222.  Pollution  of  Streams  with  Refuse  from  Sawmills  and  Tanneries.— 
Sawmills  and  tanneries  afford  refuse  materials  which,  though  not  harmful  in 
small  quantities,  become  deleterious  when  the  amount  is  large.    The  manifold 
ways  in  which  wood  products  are  now  utilized,  and  the  rigid  economy  which 
is  practiced  to  turn  every  waste  material  to  some  profit,  does  away  with  much 
of  the  fouling  of  streams  by  wood  waste.      The  emptying  of  offensive  matter 
from  tan-yards,7  or  the  discharge  of  spent  bark  from  a  tannery  into  a  stream 
so  that  it  lodges  on  the  premises  of  riparian  owners,8  or  of  sawdust,  slabs, 
and  edgings  from  a  saw-mill,9  which  render  the  water  impure  and  unfit  for 

1  Pfeiffer  v.  Brown  (Pa    Sup.),  30  Atl.  7  Honsee  v.  Hammond  (N.  Y.),  39  Barb. 
Rep.  844.  89;  Thomas  v.  Brackney  (N.  Y.),  17  Barb. 

2  Suffolk    Gold     Mining    Co.     v.     San  654;  Howell  v.  M'Coy  (Pa.),  3  Rawle  256; 
Miguel  Mining  Co.  (Colo.  App.),  48  Pac.  Moore  v.  Webb  (Eng.),  i  C.  B.  N.  S.  673; 
Rep.  828.  Aldred's  Case  (Eng.),  9  Co.  Rep.  58,  59,  a 

3  Fisk  v.    Hartford,  69  Conn.   375;    37  lime-vat. 

Atl.  Rep.  983;  Schriver  v.  Johnston  (N.  8  Winchester  v.  Osborne,  61  N.  Y.  555, 

Y.),  71  Hun.  232.  reversing  62  Barb.  337;  Seeley  v.  Alden, 

*  Carhart  v.  Auburn  Gas  Lt.   Co.  (N.  61  Pa.  St.  302;  Crosby  v.  Bessey,  49  Me. 

Y.),  22  Barb.  297;  Commonwealth  v.  Rus-  539.     And  see  Washburn    v.  Oilman,   64 

sell  (Pa.),  33  Atl.  Rep.  709.  Me.  163. 

5  Shutter,  v.    The    City,    3    Phila.    228  9  Lockwood  Co.    v.    Lawrence,  77  Me. 
[1858].  297  [1885];  Snow  v.  Parsons,  28  Vt.  459; 

6  Carhart  v.   Auburn  Gas  Lt.   Co.  (N.  Waterman  v.    Buck,    58   Vt.    519;    Hayes 
Y.),  22    Barb.    297.      See   Shutter   v.  The  v.  Waldron,  44  N.  H.  580;  Green  v.  Gil- 
City,  3  Phila.  228  [1858].  bert,   60  N.  H.    144;  State   v.  Griffin  (N. 


§  223-  OPERATIONS  PRELIMINARY    TO    CONSTRUCTION.  146 

domestic  purposes,1  or  dam,  obstruct,  and  set  back  the  waters  to  the  injury  of 
a  lower  owner,2  is  an  act  which  will  be  enjoined  and  for  which  damages  may 
be  recovered.3 

223.  Measure  of  Damages  for  Pollution  of  Waters. — Ordinarily  a  riparian 
owner  may  recover  from  the  person  or  party  who  pollutes  a  stream  such 
damages  as  he  has  actually  suffered  and  can  show.  Such  damages  may 
include  injuries  due  to  bodily  sickness  and  discomfort.4  He  may  recover  for 
all  the  expense  incurred  by  reason  of  sickness,  in  addition  to  loss  of  rent  of 
the  premises.5 

The  value  of  a  spring  which  was  destroyed  may  be  shown.6  Where  a 
water  privilege  has  been  destroyed,  the  measure  of  damages  has  been  held  to 
be  the  difference  in  value  of  the  land  immediately  before  and  after  the 
destruction.7  When  the  fouling  of  water  makes  it  unfit  for  use  and  thereby 
obstructs  the  full  enjoyment  of  the  owner,  and  it  is  agreed  to  compute  the 
damages,  an  injunction  may  be  held  necessary  to  prevent  a  multiplicity  of 
costs. 8 

Usually  the  question  of  carnages  is  left  to  the  jury;  and  the  instruction  by 
the  court  that  the  cost  of  cleaning  out  sediment  deposited  by  water  from  a 
mill  in  the  tiles  and  lateral  ditches  could  not  be  considered  by  the  jury  in 
assessing  damages  if  such  sediment  was  of.  such  nature  that  it  would  have 
been  washed  out  of  the  tiles  or  ditches  by  water  flowing  in  them,  invades  the 
province  of  the  jury  by  assuming  to  control  them  upon  a  question  of  fact.9 

The  jury  may  consider  the  use  of  the  property  and  the  plaintiff's  health 
and  comfort,  and  use  their  best  judgment  in  deciding  what  amount 
plaintiff  is  entitled  to,  if  anything.10 

In  estimating  the  damages  it  is  not  necessary  that  any  witness  express  an 
opinion  as  to  the  amount  of  such  damages.  The  jury  may  themselves  make 
such  estimate  from  the  facts  and  circumstances  in  proof,  and  by  considering 
them  in  connection  with  their  own  knowledge,  observation,  and  experience 
in  the  business  affairs  of  life. n  If  land  has  been  injured  by  reason  of  deposits 
upon  it,  evidence  may  be  given  as  to  the  diminished  value  of  the  land,  and 
also  of  the  cost  of  removing  the  deposits.12 

H.),  39   Atl.  Rep.    260  [1897];  People   v.  Litchfield  v.  Whitenack,  78  111.  App.  364 

Rogers,  12  Colo.  278;  Potters.  Froment,  [1897]. 

47  Cal.  165;  State  v.  Kronert  (Wash.),  43  5  Loughran  v.  Des  Moines,  72  la.  384. 

Pac.  Rep.  876.     But  see  Jacobs  v.  Allard,  But  see  Esson  v.  Wattier  (Oreg.),  34  Pac. 

42  Vt.  303,   which  held  that  a  mill-owner  Rep.  756. 

might  discharge  sawdust  into  a  stream  6  Mississippi  Mills  Co.  v.  Smith  (Miss.), 

in  a  reasonable  manner.  n  So.  Rep.  26. 

1  Potter  v.  Froment,  47  Cal.  165.  7  Galveston,  H.  &  S.  A.  Ry.  Co.  v.  Haas 

2  Winchester  z/.  Osborne,  61  N.Y.  555.  (Tex.),  37  S.  W.  Rep.  167. 

3  O'Reiley    v.   McChesney    (N.  Y.),    3  8  Peterson  v.  Santa  Rosa,  51  Pac.  Rep. 
Lans.  278;  Indianapolis  W.  Co.  v.  Amer.  557. 

St.  Co.,  53  Fed.  Rep.  970.  9  Prairie  State  P.  Co.  v.  Sharp,  67  111. 

4  Ferguson   v.  Firmenich   Mfg.  Co.,  77       App.  477. 

la.  576;   Randolph  v.   Bloomfield,  77  la.  10  Gavigan    v.     Atlantic    Refining    Co. 

50;  Shiveley    v.   Cedar    Rapids,   etc.,   R.  (Pa.),  40  Atl.  Rep.  834  [1898]. 

Co.,  74  la.  170;  Gladfelter  v.  Walker,  40  u  Litchfield  v. Whitenack, 78  111.  App. 364. 

Md.  i;  Eufaula  v.  Simmons,  86  Ala.  515;  12  Seely  v.  Alden,  61  Pa.  St.  302. 


CHAPTER  XIII. 

NAVIGABLE   WATERS.     PUBLIC   AND   PRIVATE   RIGHTS   IN 
NAVIGABLE   WATERS. 

231.  Navigable  Waters. — At  common  law  navigable  waters  were  those 
waters  in  which  the  tide  ebbs  and  flows.  This  is  the  sense  in  which  the 
term  is  still  used  in  England  and  in  the  earlier  decisions  in  this  country. 
In  America,  in  the  most  approved  modern  sense  of  the  term,  navigable  waters 
include  those  which  afford  a  channel  for  useful  commerce,  and  such  waters 
are  public  highways  of  common  right.1  The  common-law  definition  was  a 
reasonable  one  in  England,  where  there  are  no  rivers  of  considerable  impor- 
tance in  which  the  tide  does  not  ebb  and  flow,  but  in  this  country  it  would  be 
highly  unreasonable  to  apply  such  a  rule  to  the  great  rivers,  such  as  the 
Mississippi,  Missouri,  Ohio,  Allegheny,  Delaware,  Schuylkill,  Susquehanna, 
etc.,  and  their  branches.  It  has  been  held  that  it  is  the  navigability  in  fact 
which  forms  the  foundation  for  navigability  in  law,  and  from  that  fact  follows 
the  appropriation  to  public  use,  and  hence  its  public  character  and  legal 
navigability.  It  would  be  impossible  to  attempt  to  apply  a  common-law  rule 
to  the  rivers  of  this  country  stretching  about  three  thousand  miles  in  extent, 
flowing  through  or  between  numerous  independent  states,  and  bearing  com- 
merce which  competes  with  that  of  the  ocean.  A  test  which  was  applicable 
to  an  island  not  so  large  as  some  of  our  states,  and  to  streams  whose  utmost 
length  was  less  than  three  hundred  miles  and  whose  oultet  and  source  at  the 
same  time  could  be  within  the  same  states'  jurisdiction,  could  not  be  applied 
to  «i  continent  like  our  America.2 

The  Roman  law  which  has  pervaded  continental  Europe,  and  which  took 
its  rise  in  a  country  where  there  was  a  tideless  sea,  recognized  all  rivers  as. 
navigable  which  were  really  so;  and  this  common-sense  view  has  been  adopted 
in  this  country.  A  stream  is  regarded  as  navigable  which  is  capable  of  float- 
ing to  market  the  products  of  the  country  through  which  it  passes  and  upon 
which  commerce  may  be  conducted,  and  from  the  fact  of  its  being  navigable 
it  becomes  in  law  a  public  river  or  highway.3  The  public  easement  is  not 

1 16   Amer.    &    Eng.    Ency.    Law    236,       v.  Carmichael,  3  Iowa  i  [1856]. 
many  cases.  3  Hichok  v.  Hine,  23  Ohio  St.  523.    Sec 

2  See  comment  by  Woodward  in  McManus       also  28  Alb.  Law  Jour.  4. 

147 


§232.          OPERATIONS  PRELIMINARY    TO    CONSTRUCTION.  148 

founded  upon  usage,  custom,  or  prescription.  Any  stream  capable  of  being 
generally  and  commonly  useful  for  some  purposes  of  trade  and  of  transporta- 
tion of  property,  whether  by  steamers  or  sailing-vessels  or  rowboats  or  rafts, 
is  a  public  stream.1 

The  question  as  to  the  nature  and  extent  of  the  rights  of  riparian  owners 
upon  navigable  waters,  including  the  right  to  the  continued  flowage  of  the 
stream,  is  one  to  be  decided  by  the  courts  of  the  state  as  a  matter  of  local 
law,  subject  to  the  right  of  Congress  to  regulate  public  navigation  and  com- 
merce.2 However,  a  provision  declaring  the  Mississippi  River  a  common 
highway  for  the  inhabitants  of  the  state  and  all  other  citizens  of  the  United 
States  does' not  impair  the  title  and  jurisdiction  of  the  state  over  the  naviga- 
ble waters  within  her  boundaries,  any  more  than  rights  of  that  nature  are 
limited  with  regard  to  the  thirteen  original  states. a 

The  sovereignty  of  the  state  of  Wisconsin  extends  to  the  middle  of  Lake 
Michigan,  and  its  laws,  so  far  as  not  in  conflict  with  the  laws  of  the  United 
States  which  are  passed  in  regulation  of  commerce  and  navigation,  are  opera- 
tive within  the  boundaries  of  that  state. 3 

232.  Uses  of  Navigable  Streams. — In  order  that  waters  may  be  navigable 
in  the  legal  sense,  the  commerce  which  is  carried  over  them  must  be  of  an 
essentially  valuable  character.  This  language,  however,  is  applied  to  the 
capacity  of  the  stream,  and  is  not  intended  to  be  a  strict  enumeration  of  the 
uses  to  which  it  may  be  actually  applied  in  order  to  give  it  the  character  of 
a  navigable  stream  or  highway.  A  traveler  for  pleasure  is  as  fully  entitled 
to  protection  in  using  a  public  highway,  whether  by  land  or  by  water,  as  is  a 
traveler  for  business.4  However,  it  has  been  held  that  the  fact  that  a  river 
was  used  for  pleasure-boating  and  fishing  after  a  dam  had  been  erected  across 
it  was  no  proof  whatever  that  it  was  navigable.5 

A  cove  or  stream  cannot  be  said  to  be  navigable  because  at  times  of 
freshet  a  boat  or  skiff  or  Indian  canoe  may  be  pushed  through  its  waters,  or 
in  the  winter  months  occasionally  a  small  boat  is  hauled  up  to  escape  the  ice. 
Those  waters  are  navigable  where  the  public  pass  and  repass  upon  them  with 
vessels  or  boats  in  the  prosecution  of  a  useful  occupation.  There  should  be 
some  commerce  or  navigation  which  is  essentially  valuable.  A  hunter  or 
fisherman  by  drawing  his  boats  through  the  waters  of  a  brook  or  shallow  creek 
does  not  create  navigation  or  constitute  them  rivers  of  commerce.6  It  has 
been  held  that  the  property  which  is  the  subject  of  such  commerce  must  be 
conducted  by  the  agency  of  man.7 

1  Carter  v.  Thurston,  58  N.  H.  104.  Woods,  108  Mass.  439. 

2  St.  Anthony  Falls  W.-p.  Co.  v.  Board  5  Burrows   v.  Whitwan,   59   Mich.    279; 
of  Water  Comrs.,  18  Sup.  Ct.      Rep.  157;  Wethersfield  v.  Humphrey,  20  Conn. 217. 
158  U.  S.  349  [1897].  6  Wethersfield  v.  Humphrey,  supra. 

3  Bigelow  v.    Nickerson   (C.  C.  A.),   70  7  Munson  v.  Hungerford,  6  Barb.  N.Y. 
Fed.  Rep.  113.  265.    But  see  Morgan  v.  King,  18  Barb.  N. 

*  Chapman,   Ch.  _/.,    in    Atty.   Genl.   v.       Y.  227. 


149  NAVIGABLE   WATERS.     PUBLIC  AND    PRIVATE   RIGHTS.  §  234. 

For  a  stream  to  be  navigable  it  is  not  necessary  that  commerce  should  be 
conducted  by  means  of  boats  and  vessels.  If  the  waters  are  capable  of  float- 
ing rafts  and  logs,  they  are  public  highways  for  that  purpose.  Waters  need 
not  be  fit  for  navigation  at  all  times,  but  their  navigability  should  recur  with 
regularity  and  at  known  periods.1  The  seasons  of  navigation  must  occur 
regularly  and  be  of  sufficient  duration  and  character  to  subserve  a  useful  public 
purpose  for  commercial  intercourse.2 

233.  Navigability  does  Not  Depend  upon  Improvements, — The  naviga- 
bility of  a  stream  should  not  depend  upon  its  susceptibility  to  improvement  by 
high  engineering  skill  and  an  expenditure  of  large  sums  of  money.      It  should 
be  navigable  in  its  present  natural  condition.3     A  stream  of  water  which  is 
not  susceptible  of  use  as  a  highway  in  its  natural  state  is  absolutely  private, 
and  that  made  capable  of  floating  commercial   products  by  the  owner  by 
artificial   means  is  not   a  subject  of  public  use.4     The  weight  of  authority 
limits  the  term  navigability  to  waters  having  a  natural  and  inherent  capacity 
for  navigation.      A   stream   which   can   only  be   made   floatable  by  artificial 
means  is  in  no  sense  a  public  highway.5    Streams  which  are  not  fit  for  floating 
logs  do  not  become  public  thoroughfares  when  improved  by  riparian  owners.6 

If,  however,  the  waters  of  a  stream  have  been  diverted  from  their  natural 
course  into  a  new  channel,  the  public  may  use  it  for  floatage,  presumably  to 
the  same  extent  that  it  was  useful  before  the  diversion.7  The  same  is  true  of 
a  new  channel  created  by  a  break  in  the  dam.8  In  South  Carolina  the  court 
refused  to  charge  that  an  individual  has  such  an  exclusive  right  to  a  non- 
navigable  river  that  the  legislature  may  not  declare  it  to  be  a  public  highway, 
and  that  when  the  obstructions  are  removed  it  becomes  fit  for  public  use.9 

234.  Rule  in  Several  States. — North  Carolina  courts  have  made  the  test 
of  navigability  the  capacity  to  afford  passage  for  sea-going  vessels.     This  rule 
has  been  modified  of  late,  and  the  tendency  seems  to  be  towards  the  general 
rule.10     A  Michigan  court  has  made  the  test  of  navigability  the  actual  use  and 
not  the  capacity  for  use.     The  existence  of  a  current  is  not  the  test  of  a 
navigable  river.     It  may  be  navigable  without  a  current. ll     In  Tennessee  a 
stream  is  held  not  navigable  which  is  not  of  sufficient  depth  naturally  to  float 
rafts,  boats,  and  small  vessels.12 

1  16  Amer.  &  Eng.  Ency.  Law  243.  Belts  (Eng.),  44  Cox  (C.  C.)  211. 

2  United  States  v.  Rio  Grande  D,  &  I.  8  Whisler    v.    Wilkinson,    22    Wis.  572 
Co.  (N.  M.),  5i  Pac.  Rep.  674  [1898].  [1868]. 

3  Wadsworth  v.  Smith,  n  Me.  278.  9  Gates  v.  Wadlington  (S.  C.),  I  McCord 

4  United  States  v.  Rio  Grande  D.  &  I.  583- 

Co..  supra.  10  16  Amer.  &  Eng.  Ency.  Law  244.  But 

5  Moore  v.  Sanborne,  2  Mich.  519.  see   State  v.  Eason  (N.  C.),  19  S.  E.  Rep. 

6  Wadsworth    v.     Smith,    n    Me.    278;       88. 

Holden  v.   Robinson    Mfg.    Co.,    65    Me.  !1  Turner    v.   Holland,    54    Mich.    300; 

215;  Nutter  v.  Gallagher  (Ore.),  24  Pac.  65  Mich.  453;    Burrows  v.   Whitwan,   59 

Rep.  250  [1890].    And  see  Haines  v.  Hall,  Mich.  279. 

17  Ore.  165.  12  Irwin  v.  Brown  (Tenn.),i2  S.  W.  Rep. 

7  Dwinel  v.  Barnard,  28  Me.  544;  Dwi-  340  [1889]. 
nel  v.  Veazie,     44   Me.    167;    Regina    v. 


§235-          OPERATIONS   PRELIMINARY   TO    CONSTRUCTION. 

A  stream  maybe  navigable  which  does  not  afford  a  continuous  passage 
for  water-craft  or  logs  throughout  its  entire  extent. l  The  Niagara  River  is  a 
navigable  river  notwithstanding  the  obstruction  of  the  falls.2 

Whether  or  not  a  body  of  water  is  navigable  is  a  question  of  fact  for  the 
jury.3  When  determined  it  becomes  a  matter  of  law.4  The  burden  of  proof 
is  on  the  party  alleging  the  stream  to  be  navigable,  but  .all  tide-waters  are 
presumed  to  be  navigable.5  Courts  frequently  take  judicial  notice  of  the  fact 
that  a  river  is  navigable  or  unnavigable.6 

Where  marsh-land  bordering  on  navigable  waters  is  subject  only  to 
temporary  inundation  in  times  of  heavy  gales,  but  at  other  times  the  water 
standing  or  flowing  over  or  through  it  is  the  mere  drainage  from  higher  lands 
adjoining,  it  does  not  constitute  a  part  of  the  navigable  waters.7 

The  right  to  navigate  waters  is  generally  held  to  be  an  inherent  public 
right  needing  no  legislative  sanction  which  may  be  the  subject  of  an  express- 
grant  by  the  legislature.  If  the  capacity  of  the  stream  is  sufficient  for  actual 
use  as  a  public  highway,  the  public  is  entitled  to  enjoy  such  use.8  If  a, 
stream  has  been  used  without  objection  for  twenty  years  as  a  public  thorough- 
fare, it  becomes  a  navigable  stream.9 

235.  Non- tidal  Rivers. — A  river  has  been  held  to  be  a  natural  body  of 
water  with  a  uniform  current ;  a  running  stream  of  water  confined  on  each 
side  by  walls  and  banks.  The  name  is  applied  to  waters  which  flow  and 
reflow,  as  well  as  to  those  which  have  the  currents  one  way. 10  The  principal 
difference  between  a  river  and  a  lake  or  swamp  is  the  presence  of  a  current  in 
the  former,  but  a  lake  does  not  lose  its  distinctive  character  because  there  is 
a  current  in  it  for  a  certain  distance  leading  toward  the  outlet.11 

A  river  consists  of  a  bed,  water,  and  the  banks  or  shores — shores  if  a  tidal 
stream. 12  The  bed  is  the  soil  occupied  by  the  stream  so  as  to  destroy  vegeta- 
tion. The  banks  are  those  elevations  which  contain  the  river  in  its  natural 
channel  when  there  is  the  greatest  flow  of  water.13  The  bank  is  that  distinguished 
margin  where  vegetation  ceases,  and  the  shore  is  the  pebbly,  sandy,  or  rocky 
space  between  that  line  and  the  low-water  line.14  The  bank  of  a  river  is  that 

1 16  Amer.  &  Eng.  Ency.  Law*  244.  8Healy  v.  Joliet    R.  Co.,    2    111.    App. 

2  Re  State  Reservation  Comm.,  37  Hun  435;  Martin  v.  Bliss,  5  Blackf.  (Ind.)  35. 

(N.  Y.)  537;  St.  Anthony  Falls  W.  P.  Co.  9  Stump  v.  McNairy  (Tenn.),  5  Humph. 

v.  Board,  158  U.  S.  349;  '18  Sup.  Ct.  Rep.  363. 

157.  10 16  Amer.    &    Eng.    Ency.    Law    249, 

3 Jones    z/.    Johnson    (Tex.),    25    S.    W.  And  see   Woolrych    on    Waters,    40,  and 

Rep.  650;  16  Amer.  £  Eng.  Ency.  Law  245.  Callis  on  Sewers,  77. 

*  Morgan  v.  King,  18  Barb.  (N.  Y.)  277;  n  State  v.  Gillman,  14  N.  H.  476;  Trus- 

Rhodes  v.  Otis,  33  Ala.   578;  Walker  v.  tees  and  School  v.  Schroll,  120  111.  59. 

Allen,  72  Ala.  456.  12  Child    v.   Starr,  4    Hill.    (N.  Y.)    369; 

5  16  Amer.  &  Eng.  Ency.  Law  245.  Haight  v.  Keokuk,  4  la.  199. 

6  Clark  v.  Cambridge,  etc.,  Co.  (Neb.),  13  Howard  v.  Ingersol,  13  How.  (U.  S.) 
64  N.  W.   Rep.    239;   16   Amer.    &    Eng.  426. 

Ency.  Law  245.  14McCullough  v.  Wainwright,  14  Pa.  St. 

7Niles  v.  Cedar  Point  Club    (C.  C.  A.)       171. 
85  Fed.  Rep.  45 


151    NAVIGABLE   WATERS.     PUBLIC  AND   PRIVATE  RIGHTS.  §  237. 

rising  ground  above  the  low-water  mark  which  is  usually  covered  by  ordinary 
high  water.  The  exact  limits  of  the  bank  are  indefinite  and  indeterminate. 
To  limit  the  boundaries  of  land  by  the  bank  or  shore  of  the  stream  is  to 
define  it  in  a  very  undefined  and  extraordinary  manner.  It  affixes  no  precise 
point  of  locality,  for  the  bank  of  the  river  extends,  or  may  extend,  over  a  con- 
siderable space.1  The  bank  and  the  water  are  correlative;  a  person  cannot 
own  the  one  without  touching  the  other.2 

Neither  the  line  of  ordinary  high-water  mark  nor  that  of-ordinary  low-water 
mark  can  be  assumed  as  the  line  dividing  the  bed  from  the  banks.  This  line 
is  to  be  found  by  examining  the  bed  and  banks  and  ascertaining  where  the 
presence  and  action  of  water  are  so  common  and  usual  and  so  long-continued 
as  to  mark  upon  the  soil  of  the  bed  a  character  distinct  from  that  of  the  bank 
in  respect  to  vegetation  as  well  as  in  respect  to  the  nature  of  the  soil  itself. 
Whether  this  line  between  the  bed  and  the  banks  will  be  found  above  or 
below  or  at  the  middle  stage  of  water  must  depend  upon  the  character  of  the 
stream. 3  * 

236,  Rights   of  Public  in   Navigable  Waters. — Navigable  waters  have 
been  divided  into  two  classes,  public  and  semi-public,  the  distinction  being 
due  to  the  ownership.      Public  navigable  waters  are  those  the  soil  beneath 
which  is  common  property.     The  public  has  not  only  the  right  of  naviga- 
tion,  but   all   the  other  rights  incident   to   ownership,    such   as   fishing  and 
gathering  ice,   seaweed,    sand,   gravel,   etc.     To  this  class   belong  (i)  tide- 
waters, including  the  sea  and  its  arms  and  tidal  rivers;  (2)  in  many  states  all 
fresh-water  rivers  and  lakes  which  afford  capacity  for  valuable  floatage.     The 
open  sea  has  always  been  held  the  common  property  of   all   nations.     A 
government  is  held  to  have  dominion  adjacent  to  its  coasts  for  a  distance 
equal  to  the  range  of  cannon,  or  formerly  about  three  miles.     The  range  of 
cannon  is  taken  as  the  measure  of  distance,  on  the  principle  that  the  dominion 
of  the  state  extends  only  So  far  as  it  may  be  maintained  by  force  from  the 
coast.       The  increased  range  of  modern  ordnance  would  doubtless  extend 
this  three-mile  limit  by  several  fold.4     When  the  seashore  is  indented  with 
bays  or  coves,  the  distance  is  measured  from  a  straight  line  drawn  between 
the  inclosing  headlands.5     The  title  to  all  tide-waters  and  their  bays  in  this 
country  is  vested  in  the  several  states  for  the  use  and  benefit  of  the  public.6 

237,  As  Regards  Bathing, — It  has  been  held  in  England  that  the  public 
has   no   common-law   right   to   bathe  in   the  sea,   and  a  person   licensed   to 
conduct  a  bathing  establishment  is  not  thereby  warranted  in  placing  it  on  a 

toward  v.  Ingersol,  17  Ala.  780.  Field's   International  Code,  |>d  ed.]  28; 

2  Starr  v.  Child,  20  Wend.  (N.  Y.)  149.  The  Maxim  Zone,  .32  Alb.  Law  Jour.  104. 

3  Howard  v.  Ingersol,  13  How.  (U.  S.)  5  16  Amer.  &  Eng.  Ency.  Law  248,  and 
380.  cases  cited. 

*See    Hall's    International     Law    127;          6  16  Amer.  &  Eng.  Ency.  Law  248. 

*  See  Sees.  371-420,  infra. 


§238.  OPERATIONS  PRELIMINARY   TO    CONSTRUCTION.  I $2 

beach  which  is  private  property.1  The  English  decisions  against  common-law 
rights  to  bathe  in  the  sea  were  probably  in  reference  to  the  use  of  private 
property  for  such  purposes.  The  only  practical  restraint  upon  the  privilege 
of  sea-bathing  is  believed  to  be  that  which  is  imposed  by  decency  and  a 
respect  for  public  morals.2  Whatever  the  law  may  be  with  regard  to  bathing, 
there  can  be  no  question  as  to  the  rights  of  parties  to  go  over  private  property 
for  the  purpose  of  bathing  in  the  sea  or  catching  fish.  Such  acts  are  acts  of 
trespass.3 

238.  Navigable  Inland  Rivers  are  Usually  Public  Property. — In  many 
of  the  states  navigable  inland  rivers  in  the  sense  of  the  American  decisions 
are  public  property.  Grants  of  land  bordering  upon  them  will  not  convey  to 
the  middle  of  the  stream  as  at  common  law,  but  are  limited  by  banks  either 
at<high-  or  low -water  mark,  and  such  streams  have  all  the  general  character 
of  public  waters.*  In  the  states  of  Alabama,  Arkansas,  California,  Indiana, 
Iowa,  Kansas,  Minnesota,  Missouri,  Nevada,  Oregon,  Pennsylvania,  Ten- 
nessee, Virginia,  and  West  Virginia  the  ownership  of  non-tidal  navigable 
rivers  is  in  the  public,  and  is  subject  to  the  control  of  the  state.  In  the  states 
of  Kentucky,  Michigan,  New  York,  and  North  Carolina  decisions  have  been 
made  upholding  the  same  doctrine,  but  later  cases  have  so  modified  the 
earlier  decisions  that  it  seems  justifiable  to  withdraw  them  from  the  group  and 
place  them  under  the  head  of  semi-public  streams.4  In  Connecticut, 
Delaware,  Georgia,  Illinois,  Missouri,  Maine,  Maryland,  Massachusetts, 
Mississippi,  New  Hampshire,  New  Jersey,  Ohio,  Rhode  Island,  South 
Carolina,  Vermont,  and  Wisconsin  navigable  rivers  are  held  to  be  private 
property. 

The  question  of  the  ownership  of  the  soil  under  water  is  one  which  each 
state  is  at  liberty  to  determine  for  itself,  and  if  it  extend  the  right  of  a  riparian 
owner  to  the  center  of  the  stream,  it  is  not  for  others  to  raise  objection.5!  In 
considering  government  land-grants  the  United  'States  Supreme  Court  has 
held  that  the  court  does  not  hesitate  to  decide  that  Congress,  in  making  a  dis- 
tinction between  navigable  and  unnavigable  streams,  intended  to  provide  that 
the  common  laws  of  riparian  ownership  should  apply  to  land  bordering  upon 
unnavigable  streams,  but  that  the  title  to  lands  bordering  upon  navigable 
streams  should  stop  at  the  stream,  and  that  all  such  streams  should  be  deemed 
to  be  and  remain  public  property.6 

In  many  of  the  states  of  the  Union  the  legal  status  of  non-tidal  navigable 
waters  is  an  average  between  the  law  governing  the  tide-waters  which  are 

1Mace  v.  Philcox,  15  C.  B.  N.  S.  600.  8Hetfield  v.  Baum,  13  Ired.  (N.  C.)  394. 

2  Gould     on      Waters,     §    26;    Rex     v.  4  See  16  Amer.  &  Eng.  Ency.  Law  250. 

Gunder,   2  Camp.   89;  McManus  v.   Car-  5  Barney  v.  Keokuk,  94  U.  S.  324. 

michael,  3  la.  i;  Solliday  v.  Johnson,  38  6St.  Paul,  etc.,   R.  Co     v    Schurmeir, 

Pa.  St.  380.  7  Wall.  (U.  S.)  272,  288  [1868]. 

*  See  Sees.  401-420,  infra.  \  See  Sees.  412-420,  infra. 


153   NAVIGABLE   WATERS.     PUBLIC  AND    PRIVATE  RIGHTS.  §  240. 

entirely  public  and  those  waters  which  are  unfit  for  navigation  or  wholly 
private.  Such  non-tidal  waters  and  the  soil  beneath  them  are  held  to  be 
private  property,  but  the  owner's  interest  therein  is  qualified  by  being  subject 
to  a  public  easement  of  passage.  In  other  words,  the  law  which  is  applicable 
to  public  roads  and  highways  is  made  applicable  to  streams. 

The  distinction  between  waters  navigable  in  law  and  those  merely  navi- 
gable in  fact,  where  the  tide  does  not  ebb  and  flow,  practically  only  affects 
questions  of  title  to  the  soil,  rights  of  fishery,  and  the  like,  and  not  the  public 
right  of  navigation.1 

The  ownership  to  the  middle  of  a  navigable  river  does  not  carry  with  it 
the  right  to  the  exclusive  use  of  the  water  over  land  ordinarily  covered  by 
water,  but  is  subordinate  to  the  paramount  easement  of  navigation  by  the 
public,  which  includes  the  right  to  use  such  water  for  navigation  and  com- 
merce, and  such  uses  as  may  be  reasonably  incident  thereto.2 

239.  Waters   Between  States. — By  virtue  of  the  commercial  powers  of 
Congress  a  state  exercises  complete  control    over  navigable  waters  entirely 
within  its  borders.3*     When  the  waters  of  a  stream  constitute  the  borders  or 
are  between  states  they  are  subject  to  the  concurrent  jurisdiction  of  all.     The 
territory  of  states  and  nations  when  bounded  by  lakes  and  rivers  is  held  to 
extend  to  the  center  of  the  stream.     Exception  is  made  in  the  case  of  the 
Ohio,  the  Potomac,  the  Hudson,  and  the  Chattahoochee;  the  control  of  the 
Ohio  belonging  to  Kentucky,  of  the  Potomac  to  Maryland,  of  the  Hudson  to 
New  York,  and  of  the  Chattahoochee  to  Georgia.     The  stream  belongs  to  the 
older  state  in  each  case.4 

240.  Public   Easement   of  Passage  over  Streams  is   Paramount.— The 
public  has  a  right  of  passage  over  all  streams  which  have  a  capacity  for  that 
purpose.5     This  right  includes  not  only  navigation  for  boats  and  vessels,  but 
also  floatage  and  travel  upon  ice.6     Navigation  of  waters  has  been  held  to  be 
paramount  to  all   other  rights  and  interests.      It  is  superior  to  fishing  and  to 
the  enjoyment  of  an  oyster-bed,  and  it  has  been  held  in  England  that  it  could 
not  be  destroyed  by  a  grant. 7 

The  right  to  make  improvements  for  the  development  of  the  state  or 
country  has  been  held  inferior  to  the  rights  of  navigation,  such  as  the  right  to 
lay  pipes  in  the  bed  of  a  stream; 8  or  to  enjoy  a  ferry  franchise;9  or  to  engage 

1  People  v.  Jessup,  51  N.  Y.  Supp.  228.  6  French  v.  Camp,  18  Me.  433;  State  v. 
[1898].  Wilson,    42    Me.    9;    West    Roxbury   v. 

2  Pollock  v.  Cleveland  Shipbuilding  Co.  Stoddard  (Mass.),  7  Allen  158;  Woodman 
(Sup.),  47  N.  E.  Rep.  582.  v.  Pitman,  79  Me.  456. 

3i6  Amer.  &   Eng.  Ency.  Law   257;  see  7  16  Amer.  &  Eng.  Ency.  Law  260. 

United  States*/.  Pellingham   Bay  B.  Co.  8  Milwaukee  Gas   Light   Co.  v.   Game- 

(C.  C.  App.)  81  Fed.  Rep.  658  [1897].  cock,   23   Wis.    144. 

4  See  16  Amer.  &  Eng.  Ency.  Law  258;  9Steamboat  Globe  v.   Kutz  (la.),  4  G. 

Tyler  on  Boundaries,  pp.  78-80.  Green  433;  Babcock  v.   Herbert,  3  Ala. 

'5  Barnard  v.  Hinckley,  10  Mich.  459.  392- 

*  See  Sec.  431,  infra. 


§241.  OPERATIONS  PRELIMINARY    TO    CONSTRUCTION.  1 54 

in  fishing ; l  or  to  maintain  a  boom ; 2  or  a  pipe-line  for  gas  or  water,  or  telegraph 
lines  or  cables,  or  a  system  of  sewerage  ;*  or  the  right  to  use  and  maintain 
bridges.3.  A  bridge  constructed  over  a  navigable  stream  without  lawful 
authority  constitutes  a  nuisance.4 

In  Illinois  it  has  been  held  that  the  right  of  navigating  a  stream  and  the 
right  to  bridge  it  are  coexistent.5  When  a  bridge  has  been  built  across  a 
navigable  stream  and  a  reasonably  adequate  passageway  has  been  left,  it  is 
negligent  and  unlawful  to  float  down  a  mass  of  logs  which  exceed  the  capacity 
of  the  passageway,  to  the  injury  of  the  bridge.6 

241.  Improvement  of  Navigation  Paramount  to  Individual  Rights. — A 
state  may  authorize  improvements  that  shall  make  an  unnavigable  stream  a 
navigable  stream ; 7  or  the  construction  of  a  railroad  on  the  Hudson  River  in 
front  of  docks  and  wharves;8  or  the  filling  up  of  arms,  bayous,  and  sloughs 
of  the  Mississippi  River,  though  formerly  used  for  navigation ; 9  or  the  taking 
of  the  water  power  of  a  navigable  stream  for  the  purpose  of  improving  the 
same.10  The  state  of  Mississippi  may  improve  the  navigation  of  the  Mississippi 
River. n 

Riparian  owners  are  not  entitled  to  compensation  for  injuries  ordinarily 
incident  to  navigation  or  to  improvements  in  streams  strictly  navigable. 
They  are  entitled  to  compensation  for  injuries  that  are  not  directly  incident  to 
such  improvement.  The  public  has  a  paramount  right  to  navigable  waters 
which  were  in  common  navigable,  and  the  state  has  an  incidental  power  to 
regulate,  control,  a'nd  improve  them  as  against  private  rights  therein.  This 
does  not,  however,  include  the  authority  to  take  the  waters  for  other  purposes, 
as  for  supplying  a  city  without  making  just  compensation  to  those  who  are 
injured.12  Private  property  must  not  be  taken  nor  interfered  with  in  the 
improvement  of  navigable  waters.  If,  in  making  an  unnavigable  stream 
navigable,  the  water-power  of  the  riparian  owner  is  destroyed,  he  is  entitled  to 
compensation.13  It  has  been  held  that  if  a  statute  declare  a  river  which  is  not 

1 16  Amer.  &  Eng.  Ency.  Law  269.   But  baum  v.  Russell,  4  Nev.  551. 

see  Morris  v.   Graham  (Wash.),    47  Pac.  7  Carondelet  C.  Nav.  Co.  v.  Parker,  29 

Rep.  752.  La.    Ann.    430;    Wisconsin    Imp.    Co.    v. 

2 Miller  v.  Hare  (W.  Va.),  28  S.  E.  Rep.  Manson,  43  Wis.  255. 

722.  8Ormerod  v.  N.  Y.,  etc.,  Co.,   13  Fed. 

3  Scott  v.  Chicago,  i  Biss.  (U.  S.)  510;  Rep.  370. 

Castello  v.  Landwehr,  28  Wis.  522;  Gates  9Ingraham  v.    Chicago,    etc.,    Co.,   34 

v.  N.  Pac.  R.   Co.,  64  Wis.  64;  Farmers'  la.  249. 

Coop.    Mfg.   Co.  v.   Albemarle,  etc.,    R.  10  Greenbay,  etc.,  &  C.Co.  v.  Kaukauna, 

Co.  (N.  C.),  23  S.  E.  Rep.  43.  etc.,  Co.,  70  Wis.  635. 

4  People  v.  Jessup,  51  N.  Y.  Supp.  228  "Withers  v.  Buckley,  20  How.  (U.  S.), 
[1898].  84. 

5  111.  R.  Pac.  Co.  v.  Peoria  Bdg.  Assn.,  12  Smith   v.    Rochester,    92   N.    Y.  463; 
38  111.  467.     And  see  Chicago  v.  McGinn,  16  Amer.  &  Eng.  Ency.  Law  266. 

51  111.  266.  13  Walker  v.  Board  of  P.  W.,   16  Ohio 

6Bucki   v.    Cone,    25    Fla.    i;  Mandle-       540. 

*  See  Sec.  242,  infra. 


155    NAVIGABLE   WATERS.     PUBLIC  AND   PRIVATE  RIGHTS.  §  242. 

navigable  to  be  a  public  highway  and  does  not  make  any  provision  for  com- 
pensation to  riparian  owners,  the  act  does  not  make  it  so. l 

A  riparian  owner  on  a  navigable  river  has  the  right  of  access  to  the  navigable 
part  of  the  river  from  the  front  of  his  lot,  and  the  right  to  build  a  landing.2 
The  right  of  access  across  abutting  tide-lands  to  deep  water  is  an  incident  to 
ownership  in  fee  of  uplands  in  Alaska.3 

The  United  States  has  the  right  to  make  improvements  upon  submerged 
land,  necessary  for  the  aid  of  navigation,  without  compensation  to  the  owner 
thereof,  and  where  access  to  the  open  water  is  thereby  cut  off.4  Laws,  con- 
stitutional or  statutory,  concerning  expropriation  of  property,  and  requiring 
compensation  therefor,  have  no  application  to  property  legitimately  taken  for 
levee  purposes;  and  private  injury  resulting  therefrom  is  damnum  absque 
injuria*  The  occupancy  of  submerged  lands  in  a  navigable  river  by  a  city 
for  an  ice-break,  bridge-rest,  and  a  draw-span  for  navigation  purposes,  and  in 
no  way  interfering  with  the  use  of  the  lands  not  submerged,  is  not  such  an 
occupancy  in  law  as  will  entitle  the  riparian  owner  to  treat  the  city  as  a 
tenant  and  maintain  an  action  for  rent.6  The  owner  of  a  naked  lot  bounded 
by  navigable  water  is  not  entitled  to  compensation  for  being  deprived  of  access 
thereto  if  the  government  utilizes  the  water-bed  up  to  his  shore-line.7 

242.  Obstruction  of  Navigable  Waters.  —  Obstructions  in  navigable 
waters  are  prima  facie  nuisances.  No  amount  of  benefit  to  an  indefinite 
number  of  individuals  or  to  the  community  can  excuse  the  public  incon- 
venience resulting  from  an  obstruction  of  a  navigable  river,  and  evidence  of 
such  benefit  is  not  admissible.8  An  erection  of  an  embankment  in  a  port  or 
public  river  is  indictable  if  it  hinder  navigation,  even  though  productive  of 
great  benefits.  Lines  or  cables  stretched  across  a  navigable  channel  must  be 
so  placed  as  not  to  obstruct  boats  passing  upon  it.  Crafts  are  not  required 
to  take  precautions  to  avoid  such  lines  or  cables.  Whether  such  cables  are  a 
nuisance  and  therefore  unlawful  may  depend  upon  the  circumstances  of  th<± 
particular  case,  as  where  a  wire  cable  was  stretched  across  for  a  guy  to  a  ferry- 
boat.9 It  has  been  held  that  gas-  and  water-pipes  stretched  across  a  navigable 
stream  should  be  buried  beneath  the  bed,  or  otherwise  they  constitute  an 
unlawful  obstruction.10  Telegraph  cables  must  not  be  so  laid  as  to  come  in 

1  Olive   v.   State,  86  Ala.  88.     And  see       Leg.  News  345. 

Town  of  Pierpont  v.   Loveless,  72  N.  Y.  8  Gold  v.  Carter  (Tenn.),  g  Hump.  369. 

211:  Morgan  v.  King,  35  N.  Y.  454.  9  The  Vancouver,  2  Sawy.  (U.  S.)  Si; 

2  Peoples.  Woodruff,  51  N.  Y.  Supp.  515  Ladd  v.   Foster,  31    Fed.   Rep.  827;  The 
[1898].  Imperial.  38  Fed.   Rep.   614;  The    Echo, 

3  Lewis  v.  Johnson  (D.  C.),  76  Fed.  Rep.  19  Fed.    Rep.   45,3.      Other  cases  cited,    16 
476.  Amer.  &  Eng.  Ency.  Law  267. 

*  Scranton  v.  Wheeler  (Mich.),  71  N.  W.  10  Omslaer  v.  Philadelph  a  Co.,  31  Fed. 

Rep.  1091.  Rep.  354;  Milwaukee  Gas«Co.  v.  Game- 

5  Peart  v.  Meeker  (La.),  12  So.  Rep.  cock,  23  Wis.  154.  And  see  Buffalo  Pipe 

490.  Co.  v.  New  York,  etc.,  R.  Co.,  10  Abb. 

6 City  of  Peoria  v.  Ballance,  61  111.  N.  Cas.  (N.  Y.)  107;  United  N.  J.  R.  & 

APP-  309.  Canal  Co.  v.  Standard  Oil  Co.,  33  N.  J. 

'People  v.   Revell  (111.  C.  C.),  29  Chic.  Eq.  123. 


§242.          OPERATIONS  PRELIMINARY   TO    CONSTRUCTION.  156 

contact  with  and  annoy  or  delay  vessels  navigating  the  stream.  Authority 
from  the  state  or  federal  government  to  lay  such  cables  under  water  will  not 
justify  such  an  interruption  of  navigation.1 

The  fact  that  a  structure  [weir]  was  erected  under  proper  authority  but 
afterwards  becomes  an  obstruction  to  navigation  makes  it  unlawful.2  A 
wharf-owner  may  not  place  a  hidden  structure  between  high-  and  low-water 
mark  if  it  obstructs  navigation.3  A  riparian  owner  may  not  construct  a  jetty 
upon  a  navigable  tidal  river  to  protect  his  soil  if  navigation  is  or  may  be 
impeded.4  Deposits  and  sewage  which  fill  'up  a  harbor,  or  a  portion  of  it,  to 
the  obstruction  of  navigation,  constitute  a  nuisance.5  Deposits  of  sediment 
and  debris  are  equally  so.6  Floating-docks,  elevators,  or  storehouses  in  rivers 
or  harbors  have  been  held  public  nuisances  unless  authorized.  Impediments 
which  are  only  slight  or  temporary  or  which  are  incidental  to  the  right  of 
passage  are  held  not  actionable.  If  structures  are  located  so  as  to  afford 
passage  for  vessels,  they  are  held  not  nuisances.7  The  right  of  navigation 
must  be  exercised  with  due  and  proper  regard  to  the  rights  of  others.  A 
boat,  vessel,  raft,  or  other  floating  object  may  constitute  an  unlawful 
obstruction.  Whatever  is  reasonably  necessary  to  the  exercise  of  such  rights 
may  be  done  if  they  are  exercised  with  reasonable  care.  The  right  to  occupy 
a  highway,  such  as  a  navigable  river  within  the  jurisdiction  of  the  city, 
permanently  as  a  home,  must  be  exercised  upon  such  conditions  as  may  be 
imposed  by  the  state.8 

Navigable  streams  are  under  the  control  of  the  federal  government,  which 
undertakes  to  control  commerce  and  especially  interstate  commerce.  Under 
the  provision  of  the  federal  constitution  giving  Congress  power  "  to  regulate 
commerce,"  the  jurisdiction  of  the  United  States  over  navigable  waters  is 
paramount  to  the  title  of  the  state  to  the  land  under  the  water,  and  therefore 
the  ownership  of  such  land  does  not  include  the  right  to  erect  a  structure 
which  interferes  with  navigation.9  To  bring  obstructions  and  nuisances  in 
navigable  waters  lying  within  a  state  within  the  cognizance  of  the  federal 
courts  there  must  be  some  statute  of  the  United  States  directly  applicable  to 
such  streams.10 

Stephens  &  Co.  Transp.  Co.  v.  West-  Bloomfield   G.  Min.   Co.  (Cal.  C.  C.),  81 

ern  Union  Tel.  Co.,  8   Ben.   502;  Blanch-  Fed.  Rep.  243. 

ard  v.  Western  Union  Tel.  Co.,  60  N.  Y.  6Garitee    v.     Baltimore,     53    Md.  422; 

510;  City  of  Richmond,  43  Fed.  Rep.  85.  People  v.   Gold   Run,  etc.,  Co.,  66  Col. 

2  Williams    v.  Wilcox,    8  A.  &  E.   314;  138. 

United  States  v.  Moline  (U.  S.  D.  C.),  82  7  16  Amer.    &    Eng.    Ency.     Law    268. 

Fed.  Rep.  592  [1897],  a  bridge.  But  see  People  v.  Revell  (111.   C.   C.),  29 

3  White  v.  Phillips,  15  C.  B.  N.  S.  245.  Chic.  Leg.   News  345,  and  Illinois  C.  R. 

4  Atty.  Genl.   v.   Lonsdale,  7  L.  R.  Eq.  Co.  v.  Illinois,  146  U.  S.  387. 

377.  8  Robertson    v.    Commonwealth    (Ky.), 

5  Franklin  Wh.  v.  Portland,  67  Me.  46;       40  S.  W.  Rep.  920. 

Clark  v.  Peckham,  10  R.  I.   35:   Brayton  9  Jencks    v.     Miller   (Sup.),    40    N.     Y. 

v.  Fall  River,  113  Mass.  218;  Washburn,  Supp.  1088. 

etc.,    Mfg.    Co.  v.  Worcester,   116  Mass.  10  United    States    v.   Bellingham     Bay 

458;  Boston    Roll.    Mills    v.   Cambridge,  Boom  Co.  (C.  C.  A.),  81  Fed.  Rep.  658. 
117     Mass.    396;    United    States    v.    N. 


157   NAVIGABLE    WATERS.     PUBLIC  AND    PRIVATE  RIGHTS.    §243. 

Acts  of  Congress  merely  making  appropriations  for  the  improvement  of  a 
river  lying  within  a  state  do  not  operate  as  an  inhibition  against  state  legisla- 
tion authorizing  the  construction  of  booms,  dams,  piers,  etc.,  so. as  to  make 
unlawful  such  structures  when  erected  under  state  authority.1 

The  owner  either  of  the  adjacent  upland  or  of  the  soil  under  a  stream 
navigable  in  fact,  is  not  authorized  to  construct  over  it  a  bridge  which  inter- 
feres with  navigation  without  the  authority  of  the  legislature  or  other  public 
officers  .to  whom  the  legislature  has  delegated  the  power.2  Congress  has 
power  to  order  the  removal  of  any  obstruction  to  navigation,  as  a  bridge,  even 
though  its  construction  was  authorized  by  the  state  within  whose  boundaries 
it  was; 3  but  the  jurisdiction  of  the  United  States  over  a  navigable  stream  does 
not  extend  several  hundred  miles  above  the  navigable  portion.4 

Congress  usually  requires  the  plan  of  a  structure  to  be  erected  in  or  over 
a  navigable  stream  to  be  approved  by  the  Secretary  of  War.  An  act  of 
Congress  which  gives  authority  to  the  Secretary  of  Wai  to  give  notice  of  the 
alteration  of  bridges  that  he  believes  to  be  an  unreasonable  obstruction  to 
navigation,  and  which  empowers  the  district  attorney  to  prosecute  parties 
refusing  to  comply  with  such  notice,  is  not  unconstitutional  as  vesting  the 
Secretary  of  War  with  either  judicial  or  legislative  powers.5 

As  Act  Congress,  Sept.  19,  1890,  which  prohibits  the  erection  of  a  bridge 
in  navigable  waters  without  permission  of  the  Secretary  of  War,  excepts  from 
its  operation  bridges  the  construction  of  which  has  been  previously  authorized 
by  law,  such  consent  is  not  necessary  for  a  bridge  authorized  by  the  state 
legislature  previous  to  such  act.6 

When  an  act  of  Congress  makes  it  unlawful  "  to  alter  or  modify  the  course, 
location,  condition,  or  capacity  of  the  channel  "  of  any  navigable  waters  of 
the  United  States  unless  such  change  is  approved  by  the  Secretary  of  War,  the 
city  of  Chicago  has  no  power  to  widen  the  Chicago  River  without  such 
approval.7 

243,  Streams  for  Floating  Logs  and  Timber. — Rivers  and  streams  when 
of  such  size  and  channel  that  they  may  be  used  for  the  purpose  of  floating 
logs  or  in  the  transportation  of  any  article  of  commerce  are  public  highways. 
Any  obstructions  placed  in  such  streams  which  will  prevent  such  a  use  are 
public  nuisances,  and  they  may  be  abated  by  the  action  of  a  private  individual 
who  surfers  some  special  damage  not  common  to  the  community,  as  where 
one  has  logs  then  floating  in. the  stream  and  which  cannot  pass  by  reason  of 
the  obstruction.8  The  use  of  a  waterway  leading  from  forest  lands  to  navi- 

1  United    States    z/.     Bellingham     Bay  6  United  States  v.  Moline  (U.  S.  D.  C.), 
Boom  Co.,  supra.  82  Fed.  Rep.  592. 

2  People  v.  Jessup,  51  N.  Y.  Supp.  228  '    6  Adams  v.  Ulmer  (Me.),  39  All.  Rep. 
[1898].  347  [1897]. 

3  United  States  v.  Moline  (U.  S.  D.  C.),  7  City  of  Chicago  v.  Law  (111.  Sup.),  33, 
82  Fed.  Rep.  592    [1897].     bee  Mononga-  N.  E.  Rep.  855. 

helaNav.  Co.  z/.U-S.,  13  Sup. Ct. Rep.  622.  8  Spokane  Mill  Co.  v.  Post  (C.  C.),  50 

*  United    States    v.    Rio  Grange    D.   &       Fed.  Rep.  429;   Whisler  v.  Wilkinson,  22. 
Irr.  Co.  (N.  M.),  51  Pac.  Rep.  674.  Wis.  527  [1868]. 


§  243-          OPERATIONS  PRELIMINARY   TO    CONSTRUCTION.  158 

gable  water  for  the  purpose  of  floating  logs,  etc.,  down  the  stream  is  a  public 
use  within  the  fair  meaning  of  the  constitution,  and  will  justify  the  exercise 
of  a  right  of  eminent  domain,  and  open  it  as  a  highway. 1 

To  make  waters  navigable  in  a  legal  sense,  the  commerce  which  is  carried 
on  over  them  must  be  of  an  essentially  valuable  character.  Such  commerce 
need  not  be  carried  on  by  means  of  boats  and  vessels.  Waters  which  are 
capable  only  of  floating  rafts  and  logs  are  public  highways  for  that  purpose.2 

In  Alabama  a  stream  which  is  suitable  for  purposes  of  navigation  only  at 
certain  periods  of  varying  duration,  and  is  not  connected  with  tide-water,  and 
will  float  logs  and  flat-boats  only  during  the  winter  seasons,  is  not  necessarily 
a  public  highway.  The  question  as  to  whether  such  a  stream  is  a  public 
highway  is  one  of  fact  for  a  jury.3 

In  order  to  be  a  navigable  stream  it  is.  not  necessary  that  the  waters  shall 
be  deep  enough  to  admit  the  passage  of  boats  at  all  portions  of  the  stream.4  * 

A  non-navigable  river  may  be  used  by  the  public  for  the  purpose  of  float- 
ing logs  if  the  stream  be  sufficient  for  that  purpose  in  its  natural  condition, 
unaided  by  artificial  means.5  The  fact  that  logs  have  been  driven  down  a 
stream  by  the  use  of  dams  does  not  make  it  a  navigable  stream  if  they  cannot 
be  run  down  in  ordinary  weather.6  Streams  in  which  logs  cannot  be  floated 
without  being  propelled  by  persons  on  the  banks  are  not  navigable.7  The 
contrary  rule  prevails  in  Wisconsin. 

In  some  decisions  the  right  to  float  logs  in  a  private  stream  has  been  held 
to  be  confined  to  those  logs  cut  near  the  streams. 8 

The  right  of  floatage  of  logs  has  been  held  not  of  such  importance  as  to 
sacrifice  the  use  of  water  for  machinery  to  the  former  use. 9  At  those  times 
when  a  stream  is  not  naturally  floatable  an  upper  riparian  owner  has  no  right 
to  detain  the  water  until  a  flood  can  be  caused  sufficient  to  float  logs  to  the 
detriment  of  the  lower  riparian  owner. 10 

It  is  held  that  the  waters  of  a  stream  need  not  be  fit  for  navigation  at  all 
times,  but  that  their  capacity  therefor  should  recur  with  regularity.11  The 

1  In  re  Burns,  155  N.  Y.  23,   reversing  Rep.  22.     But  see  Whisler  v.  Wilkinson, 
16  App.  Div.  507.     '  22  Wis.  572  [1868], 

2  16    Amer.   &    Eng.    Ency.    Law    242,  7  Brown    v.    Chadbourne,    31    Me.    9; 
many  cases  cited;  Collins  v.  Howard  (N.  Morgan  v.  King,  35  N.  Y.  454. 

H.),  18  Atl.  Rep.  794.     This  rule  is  some-  8  Kupman   v.   Blodgett  (Mich.),   14  N. 

what  qualified    in    South  Carolina.     See  W.    Rep.    109.     See   Smith    v.    Fonds,   64 

Gates  v.  Wadlington  (S.  C.),  I  McCord  Miss.  551;  Morgan  v.  King,  35  N.  Y.  454. 

582;  Amer.  R.  W.  Co.  v.  Amsden,  6  Cal.  9  Middleton   v.   Flat  River  B.   Co.,   27 

443.  Mich.   533.     But   see   Collins  v.  Howard 

3  Olive  v.  State  (Ala.),  5  So.  Rep.  653  (N.  H.)~  18  Atl.  Rep.  794. 

[1889].  lo  Thunder  Bay  B.  Co.  v.  Speechly,  31 

4  St.  Anthony  W.-p.  Co.  v.   Board    of  Mich.  336;  Witheral  v.  Muskegon  B.  Co., 
Commrs.,  158  U.  S.  349.  68  Mich.  48. 

5  DeCamp  v.  Thompson  (Sup.),  44  N.  n  16  Amer.  &  Eng. Ency.  Law  243,  244; 
Y.    Supp.   1014;  Collins    v.   Howard  (N.  Swan  v.  Munch  (Minn.),  67  N.  W.  Rep. 
H.),  18  Atl.  Rep.  794.  1022. 

6  Smith  v.   Carlow  (Mich.),   72  N.  W. 

*  See  Sec.  234,  supra. 


159  NAVIGABLE    WATERS.     PUBLIC  AND   PRIVATE  RIGHTS.  §  243. 

decisions  are  not  agreed  as  to  the  rights  of  the  public  to  use  streams  which 
are  capable  of  floating  logs  for  but  a  part  of  the  year.  In  those  states  where 
the  lumber  industry  is  important  such  streams  are  held  to  be  subject  to  the 
public  use  during  times  when  they  have  sufficient  capacity.  This  is  true  in 
the  states  of  Maine,  Michigan,  Mississippi,  Oregon,  and  Wisconsin.  In  other 
states  the  rule  is  laid  down  that  small  streams  capable  only  of  floating  logs 
during  a  freshet  or  for  a  small  part  of  the  year  are  not  subject  to  a  public 
easement  of  floatage.  This  was  so  held  in  the  states  of  Alabama,  Illinois, 
Massachusetts,  and  New  York.1  When  there  was  no  evidence  concerning  the 
character  of  the  forests  adjacent,  or  the  number  of  people  engaged  in  the 
logging  business,  or  that  boats  had  ever  navigated  its  waters,  or  that  it  was 
exempt  from  the  government  survey  as  a  public  stream,  it  was  held  that  the 
stream,  as  a  matter  of  law,  was  not  a  public  stream.2 

In  some  states  laws  have  been  enacted  requiring  that  logs  shall  not  be 
floated  down  certain  rivers  unless  bound  together  in  rafts  or  inclosed  in 
boats,  and  providing  for  the  forfeiture  of  all  logs  floated  in  violation  of  such 
statutes.  Such  a  law  has  been  held  to  be  constitutional.3  The  law  has  been 
held  constitutional  though  the  logs  came  from  one  state  and  passed  through 
into  another.4 

The  title  of  the  owner,  it  seems,  cannot  be  divested  for  the  violation  of 
such  a  statute  unless  he  had  notice  and  an  opportunity  to  show  his  innocence 
of  the  violation  of  the  law.5  Timber  was  held  not  liable  to  forfeiture  after  it 
had  come  into  the  custody  and  control  of  the  owner.6 

It  has  been  held  not  a  crime  to  float  rafts,  logs,  timber,  boats,  and  vessels 
loose  and  adrift  in  and  upon  the  navigable  waters  of  the  United  States.  The 
Kw  making  it  a  crime  to  obstruct  navigation  applies  only  to  those  obstruc- 
tions which  are  permanent  in  their  nature.7 

One  driving  logs  in  a  navigable  stream  is  liable  only  for  injury  to  the 
estates  of  riparian  owners  resulting  from  a  lack  of  ordinary  care,  and  it  is 
therefore  improper  to  charge  that  one  is  liable  for  such  injury  if  it  might  have 
been  foreseen  by  an  ordinarily  prudent  man.8 

When  a  person  has  by  proper  proceedings  acquired  a  right  to  maintain  a 
dam  in  a  stream  navigable  for  logging  purposes,  and  by  accident  there  is  a 
recent  break  in  the  dam,  he  is  entitled  to  a  reasonable  time  in  which  to  repair 
the  dam,  and  to  the  reasonable  detention  of  the  logs  of  a  navigator  for  its 
protection.9  The  right  to  float  logs  in  a  stream  may  be  acquired  by  adverse 

1  But  see  Brown   v.  Schofield,  8   Barb.        Mass.  580. 

(N.  Y.),  243;  Meyer  v.  Phillips  et  at.,  97  5  Craig  v.  Kline,  65  Pa.  St.  399;  Wendt 

N.  Y.  485  [1884];    Haines    v.   Welch,    14  v.  Craig,  67  Pa.  St.  424. 

Ore.  319;  Haines  v.  Hall,  17  Ore.  165.  6  Baron  v.  Davis,  4  N.  H.  338. 

2  Bayzer  v.  McMillan  Mill  Co.  (Ala.),  7  United    States    v.   Burns   (C.  C.),    54 
16  So.  Rep.  923.  Fed.  Rep.  351. 

3  Craig  v.  Kline,  65   Pa.  St.  399;  Scott  8  Coyne  v.   Mississippi  &  R.  R.  Boom 
v.  Wilson,  3  N.  H.  321.    See  United  States  Co..  75  N.  W.  Rep.  748. 

v.  Burns  (C.  C.),  54  Fed.  Rep.  351.  9  Pratt  «/.  Brown  (Mich.),  64  N.  W.  Rep. 

4  Harrigan    v.    Conn.    R.    L.    Co.,    129       583. 


§244.          OPERATIONS  PRELIMINARY   TO   CONSTRUCTION.  l6o 

use  for  the  full  prescriptive  period,   especially  where  the  parties  have  gone 
upon  the  servient  lands  and  built  dams  and  overflowed  them.1 

244,  Banks  and  Shores  of  Navigable  Waters  and  their  Use. — Under  the 
civil  law  the  public  was  entitled  to  the  use  of  the  banks  and  shores  of  navi- 
gable waters  as  appurtenant  to  the  right  of  passage,  and  the  same  law  holds  in 
states  where  the  principles  of  that  system  of  law  prevail.  This  is  true  in 
Louisiana.  Under  the  common  law  it  is  pretty  well  settled  that  the  rights  of 
navigators  are  limited  to  the  shore  below  high-water  mark,  and  that  the  ease- 
ment of  passage  does  not  include  the  use  of  the  banks  and  shores  for  general 
purposes  incident  to  navigation.2  It  has  been  held  that  the  public  have  no 
general  rights  as  against  riparian  owners  to  land,  embark,  load,  or  unload 
freight.  It  has  even  been  held  in  some  cases  that  a  part  of  the  highway  could 
not  be  used  for  such  purposes,  but  there  are  numerous  cases  in  which  it  has 
been  held  that  a  ferry  might  be  landed  at  a  highway  and  the  same  be  used  for 
a  landing.3  It  has  been  held  that  the  public  cannot  acquire  a  right  to  the 
landing  by  custom  or  prescription  in  New  York,  Indiana,  and  Wisconsin. 
A  different  rule  has  been  established  in  Massachusetts,  North  Carolina, 
Pennsylvania,  and  Maine.  The  legislature  may,  of  course,  take  private 
property  for  the  use  of  a  landing,  but  it  seems  the  selectmen  of  the  town, 
cannot  do  so  unless  expressly  authorized  by  their  charter.4  As  against  all 
except  riparian  owners  the  public  have  a  right  to  moor  or  anchor  on  the 
banks  or  shores  of  navigable  waters. 

There  is  no  public  right  at  common  law  to  tow  from  the  banks,  nor  has- 
the  public  a  right  of  access  to  waters  from  inlying  lands.  The  owners  of 
stranded  property  may  go  upon  the  banks  for  the  purpose  of  reclaiming  what 
belongs  to  them.  Persons  floating  logs  down  a  stream  may  go  upon  the 
banks  in  cases  of  necessity.5  A  builder  of  vessels  moored  opposite  the  lands- 
of  a  riparian  owner  for  the  purpose  of  repairs  or  for  placing  therein  engine, 
boilers,  and  machinery  has  no  right  to  carry  lines  from  them  across  the  river- 
bank  of  such  owner  against  his  objection,  and  fasten  them  upon  the  latter '& 
land.6  If  he  does  so  against  the  owner's  objection,  and  fastens  them  upon 
the  land  of  such  builder,  and  insists  upon  the  right  to  continue  such  acts,  the 
riparian  owner  may  be  entitled  to  an  injunction  although  his  land  is  unim- 
proved and  such  acts  produce  no  actual  present  damage.6 

Among  the  rights  of  the  public  in  a  navigable  stream  is  that  of  mooring 
vessels  for  the  purpose  of  repairs,  and  of  putting  in  engine,  boilers,  and 
machinery  after  such  vessels  have  been  launched.  Such  use,  reasonably 
enjoyed,  is  not  a  trespass  upon  the  lands  of  a  riparian  owner  in  front  of 

1  Swan   v.    Munch   (Minn.),   67    N.  W.  3  16    Amer.   &    Eng.    Ency.   Law    262. 
Rep.      1022  ;     Ramgren     v.     McDermott       And  see    Murphy  v.    Bullock  (R.  I.),   37 
(Minn.),    76    N.    W.    Rep.    47-     But    see       Atl.  Rep.  348. 

Meyer   v.    Phillips   et   at.,    97   N.  Y.    485  4  16  Amer.  &  Eng.  Ency.  Law  2^2. 

[1884],  and  Commrs    v.  Catawba  Lumb.  5  16  Amer.  &  Eng.  Ency.  Law  263. 

Co.  (N.  C.),  20  S.  E.  Rep.  707.  6  Pollock    v.   Cleveland"  Shipbldg.   Co. 

2  16  Amer.  &  Eng.  Ency.  Law  261.  (Ohio),  47  N.  E.  Rep.  582  [1897]. 


l6l    NAVIGABLE    WATERS.     PUBLIC  AND   PRIVATE  RIGHTS.  §245 

whose  river-bank,  outside  of  the  dock-line,  such  vessels  are  moored,  and  such 
owner  will  not  be  entitled  to  an  injunction  forbidding  such  use  unless  special 
injury  to  his  property  is  shown.1 

245.  Rules  and  Restrictions  Governing  the  Use  of  Navigable  Waters. — 
The  use  by  the  public  of  navigable  waters  is  subject  to  rules  and  restrictions 
not  unlike  those  which  apply  to  highways  in  general.  The  right  must  be 
exercised  in  a  reasonable  way  and  with  due  regard  to  the  rights  of  riparian 
owners  and  other  navigators.  What  is  a  reasonable  use  is  a  question  of  fact 
and  may  be  determined  by  the  circumstances  of  each  case.  The  .subject  of 
navigation  is  too  large  for  even  a  brief  treatment  in  this  book,  and  the  reader 
is  referred  to  other  works  upon  the  subject. 

The  public  right  of  navigation  may  be  restricted  or  even  extinguished  by 
natural  causes  or  by  legislative  enactment.  There  are  decisions  to  the  con- 
trary in  those  states  where  the  ordinance  of  1787  was  in  force.  It  has  been 
held  that  highways  by  water  could  not  be  entirely  destroyed.2 

The  right  to  improve  navigable  waters  is  subject  to  government  regulation 
and  control.  In  England  it  is  vested  in  Parliament,  and  in  the  United  States 
the  authority  of  Congress,  under  the  commercial  clause  of  the  constitution, 
has  been  held  to  be  paramount.  In  the  absence  of  congressional  action 
the  power  of  the  state  legislature  is  held  to  be  supreme.  It  may  direct  the 
improvement  of  navigable  rivers,  or  may  authorize  improvements  by  indi- 
viduals or  private  corporations,  and  may  levy  tolls  to  ..eimburse  the  state 
for  the  improvement.  The  state  legislature  may  authorize  the  improvement 
of  a  river  within  its  own  borders,  and  impose  reasonable  tolls  to  compensate 
it  for  such  improvement.3 

A  property  owner  affected  by  an  improvement  in  a  navigable  stream,  as 
the  widening  of  a  navigable  river  of  the  United  States  by  a  city,  may  object  on 
the  ground  of  the  city's  want  of  power,  although  the  United  States  makes  no 
complaint.4 

1  Pollock    v.    Cleveland    Shipbuilding  Mich.  628;  Sands  v.  Manistee  River  Imp. 
Co.,  supra.  Co.,    123   U.S.   288;    Monongahela   Nav. 

2  16  Amer.  &  Eng.  Ency.  Law  264.  Co.  v.  United  States,   13  Sup.  Ct.  Rep. 

3  Thames    Bank    v.    Lovell,    18    Conn.  622. 

500;  Palmer  v.  Cuyahoga  Co.,  3  McLean  4  City  of  Chicago  v.  Law  (111.  Sup.),  33; 

[U.  S.)  226;  Huse  v.  Glover,  19  U.  S.  543;       N.  E.  Rep.  855. 
Benjamin  v.  Manistee   R.   Imp.   Co.,  42 


CHAPTER  XIV. 
SUBTERRANEAN   OR   UNDERGROUND   WATERS. 

251,  Subterranean   Waters   Defined. — Subterranean  waters   are   of   two 
kinds:  first,  waters  that  percolate  or  flow  through  the  ground  beneath  the 
surface,  and  which  have  no  well-defined  channel  that  is  known  or  ascertain- 
able;  secondly,  underground  currents  of  water  that  flow  in  defined  and  known 
channels.     The  law  with  regard  to  these  two  kinds  of  underground  waters  is 
quite  different;  the  law  of  the  one  partaking  of  the  character  of  the  land, 
soil,  and  other  characteristics  of  property,  and  the  second  being  governed  by 
the  same  laws  that  belong  to  watercourses. l 

252.  Percolating  Waters. — The  term  ' '  percolating  waters, ' '  as  applied  to 
underground  waters,  means  any  flowage  of  subsurface  waters  other  than  those 
of  a  running  stream,   open,  visible,  and  that  may  be  clearly  traced.2     Such 
underground  percolating  waters  are  as  much  the  property  of  the  owner  of  the 
land  as  are  ores,  rocks,    etc.,  beneath  the  surface.3     The  owner  of  the  soil 
acquires  all  that  lies  beneath  its  surface,  whether  it  is  solid  rock  or  porous 
ground  or  venous  earth,  or  part  soil  and  part  water.      The  person  who  owns 
the   fee-simple   may   take   and  apply  all  that  is  found    therein  for  his  own 
purpose  at  his  own  free  will  and  pleasure.      If,  in  the  exercise  of  such  rights, 
he  interrupts  so  as  to  have  the  water  collected  in  the  underground  springs 
in   his   neighbor's   well,    this   inconvenience    falls   within   the   description   of 
damnum  absque  injuria  which  cannot  become  a  cause  of  action.4     The  only 
remedy  which  the  owner  of  the  well  can  adopt  to  prevent  such  water  from 
being  diverted  from  his  well  is  to  sink  his  well  deeper.5 

Percolating  waters  belong  absolutely  to   the  owner  of  the  soil.6     Such 

1  27    Amer.    &    Eng.    Ency.    Law    423;       Reclamation    of     Lands,    vol.    4,    p.   348 
Gould  on  Waters  (2d   ed.),  §  280;    cases        [1890]. 

cited   in    Public    Documents,    Report    of  4  Ashton  v.  Blundell,  12  M.  &  W.  324 ; 

Spec.  Comm.  U.  S.  Senate  on  the  Irriga-  Trustees  of  Delhi  v.  Youmans,  50  Barb. 

tion    and     Reclamation     of    Arid    Lands  316  [1867]. 

{Irrigation  in  the  U.  S.,  by  R.  J.  Hinton,  5  News  River  Co.  v.  Johnson.  2  El.  & 

p.  355).  El.  445;  Com.  v.  Fisher  (Pa.),  i  P.  &  W. 

2  Mosier  v.  Caldwell,  7  Nev.  363.  462.     But   see    Forbell    v.    City    of    New 

3  27    Amer.    &    Eng.    Ency.    Law   427;  York.  56  N.  Y.  Supp.  790  [1899]. 

Reid    v.   Reid    (CaU,  44    Pac.   Rep.   564;  6  Gould  v.   Eaton  (Cal.),  44  Pac.  Rep. 

Cross  v.  Kitts  (Cal.),  22  The  Reptr.  361  319;  27  Amer.  &  Eng.  Ency.  Law  425, 
[1886];  cases  cited  in  Report  of  Sp.  many  cases  cited ;  Brown  v,  Kistler  (Pa.), 
Comm.  U.  S.  Senate  on  Irrigation  and  42  Atl.  Rep.  885. 

162 


163  SUBTERRANEAN   OR    UNDERGROUND    WATERS.  §253. 

waters  are  regarded  as  part  of  the  earth,  with  the  absolute  right  of  use  and 
appropriation  by  the  "owner  of  the  land  in  which  it  is. l  It  is  well  settled  by 
authority  that  the  owner  of  land  may  intercept  or  impede  the  natural  under- 
ground percolations  of  his  land  even  though  it  destroy  the  sources  of  supply 
of  his  neighbors'  springs  or  welts.  The  owner  of  land  may  dig  wells  or 
drainages  upon  his  land,  conduct  mining  operations,  or  in  any  way  change 
its  natural  condition  even  though  it  destroy  the  percolating  waters  of  other 
adjacent  owners.2 

The  reasoning  is  briefly  this :  In  the  absence  of  express  contract  and  of 
positive  authorized  legislation  as  between  proprietors  of  adjoining  lands,  the 
law  recognizes  no  correlative  right  in  respect  to  underground  waters  percolat- 
ing, oozing,  or  filtering  through  the  earth,  and  this  mainly  from  considera- 
tions of  public  policy,  viz.  :  (i)  because  the  existence,  origin,  movement,  and 
course  of  such  waters,  and  the  causes  which  govern  and  direct  their  movement, 
are  so  secret,  occult,  and  concealed  that  an  attempt  to  administer  any  set  of 
legal  rules  in  respect  to  them  would  be  involved  in  hopeless  uncertainty,  and 
therefore  would  be  practically  impossible;  (2)  because  any  such  recognition 
of  correlative  rights  would  interfere,  to  the  material  detriment  of  the  common- 
wealth, with  drainage  and  agriculture,  mining,  the  construction  of  highways 
and  railroads,  with  sanitary  regulations,  building,  and  the  general  progress  of 
improvement  in  works  of  embellishment  and  utility. 

253.  Percolating  Waters  Distinguished  from  Surface  Currents. — The 
rights  of  adjoining  proprietors  in  running  streams,  and  the  general  laws 
relative  thereto,  have  no  application  to  undefined  subterranean  waters  which 
are  the  result  of  natural  and  ordinary  percolations  through  the  sorl.  As 
Justice  Tindall  has  said  in  an  English  case:3  "  There  is  a  marked  and  sub- 
stantial difference  between  watercourses  flowing  on  the  surface,  and  springs 
beneath  the  surface  of  the  ground.  In  the  case  of  a  well  sunk  by  a  proprietor 
in  his  own  land,  the  water  which  feeds  it  from  the  neighboring  soil  does  not 
flow  openly  in  the  sight  of  the  neighboring  proprietor,  but  through  the  hidden 
veins  of  the  earth  beneath  the  surface.  No  man  can  tell  what  changes  these 
underground  sources  have  undergone  in  the  progress  of  time.  No  proprietor 
knows  what  part  of  the  water  is  taken  from  beneath  his  own  soil,  how  much 
he  gives  originally,  or  how  much  he  transmits  only,  or  how  much  he  receives. 
On  the  contrary,  until  the  well  is  sunk  and  the  water  collected  by  draining 
into  it,  there  cannot  properly  be  said,  with  reference  to  the  well,  to  be  any 
flow  at  all.  The  difference  in  the  two  cases  with  respect  to  the  consequences, 
if  the  same  law  be  applied  to  both,  is  apparent  to  any  one.  In  the  case  of 
a  running  stream,  the  owner  of  the  soil  merely  transmits  the  water  over  its 
surface ;  he  receives  as  much  from  the  higher  neighbor  as  he  sends  down  to 

1  Wheelock  v.  Jacobs  (Vt.),  40  Atl.  Rep.  Trustees    v.    Youmans,    50    Barb.    316 
41  [1897];  Trustees  of  Delhi  v.  Youmans,  [1867];    Bloodgood  v.  Ayers,   108  N.  Y. 
50  Barb.  316  [1867].  400  [1888]. 

2  27    Amer.    &    Eng.    Ency.    Law  425;  3  Acton  v.  Blundell,  12  M.  &  W.  324. 


§253-          OPERATIONS  PRELIMINARY    TO   CONSTRUCTION.  164 

his  neighbor  below;  he  is  neither  better  nor  worse;  the  level  of  the  water 
remains  the  same.'  If  the  man  who  sinks  the  well  on  his  own  land  can 
acquire  by  that  act  an  absolute  and  indefeasible  right  to  the  water  that 
collects  in  it,  he  has  the  power  of  preventing  his  neighbor  from  making  any 
use  of  the  springs  in  his  own  soil  which  shall  interfere  with  the  enjoyment  of 
the  well.  He  has  the  power  still  further  of  debarring  the  owner  of  the  land 
in  which  the  spring  is  found  and  through  which  it  is  transmitted  from  drain- 
ing his  land  for  the  proper  cultivation  of  the  soil,  and  thus  by  an  act  which 
is  voluntary  on  his  part,  and  which  may  be  entirely  unsuspected  by  his 
neighbor,  he  may  impose  on  such  neighbor  the  necessity  of  bearing  a  heavy 
expense  if  the  latter  has  erected  machinery  for  the  purpose  of  mining  and 
discovers  when  too  late  that  the  appropriation  of  the  water  has  already  been 
made.  Further,  the  advantage  on  one  side  and  the  detriment  to  the  other 
may  bear  no  proportion.'  The  well  may  be  sunk  to  supply  a  cottage  or  the 
diinking-place  of  cattle,  while  the  owner  of  the  adjoining  land  may  be  pre- 
vented from  mining  metals  and  minerals  of  inestimable  value;  and  lastly, 
there  is  no  limit  of  space  in  which  the  claim  of  right  to  an  underground  spring 
may  be  confined.  In  the  present  case  the  nearest  coal-pit  is  at  a  distance  of 
half  a  mile  from  the  well,  and  it  is  obvious  that  the  law  must  equally  apply  if 
there  is  an  interval  of  many  miles." 

In  an  American  case1  Justice  Strong  observes:  "  A  surface  stream  cannot 
be  diverted  without  knowledge  that  the  diversion  will  affect  a  lower  proprietor. 
Not  so  with  an  unknown  subterranean  percolation  or  stream.  One  can 
hardly  have  rights  in  another's  lands  which  are  imperceptible,  of  which 
neither  himself  nor  the  other  can  have  any  knowledge.  No  such  rights  can 
be  supposed  to  be  taken  into  consideration  when  either  the  upper  or  lower 
tract  was  purchased.  The  purchaser  of  lands  on  which  there  are  unknown 
subsurface  currents  must  buy  in  ignorance  of  any  obstacle  to  the  full  enjoy- 
ment of  his  purchase  indefinitely  downwards,  and  the  purchaser  of  land  on 
which  a  spring  rises,  ignorant  whence  and  how  the  water  comes,  cannot 
bargain  for  any  right  to  a  secret  flow  of  water  in  another's  land.  It  would 
seem,  therefore,  most  unreasonable  that  the  latter  should  have  a  right  to 
prevent  his  neighbor  from  enjoying  his  own  land  in  the  ordinary  way,  either 
by  digging  wells,  cellars,  drains,  or  by  quarrying  and  mining.  A  further 
reason  for  holding  that  there  is  no  such  right  is  found  in  the  indefinite  nature 
and  great  extent  of  the  obligation  which  would  be  imposed  if  the  right 
existed.  Instances  have  occurred  where  excavations  have  had  the  effect  of 
draining  land,  although  at  the  distance  of  several  miles.2  Even  in  the  case 
before  us,  the  mining-pit  of  the  defendants  is  more  than  three  hundred  feet 
distant  from  the  plaintiff's  spring.  These  appear  to  us  very  sufficient  reasons 
for  distinguishing  between  surface  and  subterranean  streams,  and  denying  to 

1  Haldeman    v.   Bruckhart,  45    Pa.   St.  2  Gale  &  Wheatley  on  Easements  178. 

5U- 


165  SUBTERRANEAN   OR    UNDERGROUND    WATERS.  §254. 

inferior  proprietors  any  right  to  control  the  flow  of  water  in  unknown  sub- 
terranean channels  upon  an  adjoiners'  land.  They  are  as  applicable  to 
unknown  subsurface  streams  as  they  are  to  nitrations  and  percolations  through 
small  interstices.  Neither  can  be  defined  watercourses,  though  they  may  be 
definable."  l 

254.  Sapping  and  Diverting  Sources  of  Springs  and  Wells. — The  owner 
of  land  may  lawfully  dram  the  natural  percolations  from  his  neighbor's  land, 
and  he  may  prevent  the  percolations  of  his  own  land  going  into  the  well  of 
his  neighbor.2  Therefore  where  a  spring  was  fed  solely  from  percolating 
waters  from  a  swamp  or  wet  lands  surrounding  the  same  and  not  by  a  running 
stream,  and  one  party  had  collected  the  water  of  the  spring  into  a  reservoir  and 
transmitted  it  by  pipes  for  years,  it  was  held  that  he  has  no  action  against 
another  who  had  diverted  the  water  from  the  land  by  means  of  a  tunnel  and 
ditch  constructed  above  the  reservoir  on  his  own  lands.3 

As  between  two  corporations  pumping  water  from  their  respective 
premises  for  transportation  and  sale,  one  cannot  complain  of  the  diversion  of 
percolating  water  from  his  own  land  by  the  other.  Their  rights  in  this  respect 
are  equal.4 

However,  the  right  of  an  owner  of  land  to  divert  or  consume  percolating 
waters  has  been  held  ii6t  to  extend  to  authorize  the  destruction  of  a  stream, 
spring,  or  well  by  cutting  off  its  source  of  supply,  when  the  acts  causing  such 
result  are  not  done  for  the  beneficial  use  and  enjoyment  for  any  purpose  of 
the  land  itself  whereon  they  are  done,  but  for  the  sole  purpose  of  gathering 
water,  by  pumps  as  well  as  by  natural  means,  to  be  carried  to  a  distant  place 
for  the  use  of  strangers  having  no  right  to  the  water  as  against  the  owners  of 
neighboring  lands.5 

A  spring  from  which  no  stream  or  watercourse  runs,  but  the  source  of 
which  and  the  flow  of  its  waste  are  alike  underground,  and  so  matters  of 
speculation  and  uncertainty,  belongs  to  the  owner  of  the  land,  and  he  may 
divert  and  use  the  waters  to  his  own  uses.6  In  this  case  the  water  came  from 
a  spring  situated  on  defendant's  land,  one  hundred  and  twenty  feet  from  plain- 
tiff's line,  and  had  for  many  years  been  conducted  to  a  trough.  The  waste 
water  from  the  trough  disappeared  into  the  ground  one  hundred  feet  distant, 
near  plaintiff's  line,  appeared  on  the  surface,  sometimes  appeared  to  be  in 
motion  toward  a  sluice,  under  a  fence  dividing  defendant's  land  from 
plaintiff's,  where  it  again  disappeared,  and  came  up  again  to  the  surface, 
twenty  feet  on  plaintiff's  side  of  the  line,  forming  a  spring  or  reservoir. 

1  Case    v.    Hoffman    (Wis.),   72    N.    W.  Cal.  615;  Leonard  v.  Shatzer  (Mont.),  28 
Rep.  390  [1897].  Pac.  Rep.  457. 

2  New   River  Co.   v.  Johnson,  2   El.  &  *  Merrick  Water  Co.  v.  City  of  Brook- 
El.   435;  Acton  v.  Blundell,  12  M.  &  W.  lyn  (Sup.),  53  N.  Y.  Supp.   16  [1898];  see 
327.     See   also    Hodgkinson   v.   Ennor,  4  Smith  v.  Brooklyn,  18  App.  Div.  340. 

B.    &   S.    241.    Bloodgood  v.   Ayers,   108  5  Smith  v.   Brooklyn  (Sup.),  46    N.  Y. 

N.  Y.  400  [1888] ;  Wilson  v.  Ward  (Colo.),  Supp.  141. 

56  Pac.  Rep.  573  [1899].  6  Bloodgood  v.   Ayers,    108  N.  Y.  400 

8  So.   Pac.  Railroad  Co.   v.  Dufour,  95  [if"*" 


§255-          OPERATIONS  PRELIMINARY    TO    CONSTRUCTION.  1 66 

Percolating  water  collected  or  gathered  into  a  stream  in  a  defined  channel 
by  the  owner  of  the  land  is  subject  to  the  same  rights  of  ownership  and  use 
as  are  ordinary  waterways. l 

255.  Springs  and  Wells  Drained  by  Construction  of  Public  Works. — If, 
in  the  appropriation  and  use  of  land  taken  for  public  purposes,  subterranean 
waters  are  intercepted  or  diverted,  no  action  can  be  had  for  damages.2  A 
city  is  not  liable  because,  in  the  construction  of  a  sewer,  the  water  which 
formerly  percolated  to  a  spring  or  well  is  drained.3  It  was  so  held  when  tjie 
construction  of  a  water-tunnel  rendered  a  well  dry.4  If  a  railroad  company  in 
the  construction  of  its  road  renders  a  well  or  subterranean  stream  dry  by 
excavation  of  the  ground,  the  party  owning  the  well  or  stream  can  have  no 
right  of  action  against  the  company.5 

It  is  sometimes  held  that  a  railroad  or  canal  company  acquires  only  a 
right  of  way  or  mere  usufruct  in  the  land,  and,  not  being  the  actual  owner,  that 
it  therefore  cannot  have  the  rights  of  an  owner  in  the  land,  and  cannot  there- 
fore exercise  the  privileges  to  the  injury  of  adjoining  owners.6  It  may  well 
be  doubted  if  the  ownership  of  a  mere  right  of  way  is  sufficient  ownership  of 
land  to  entitle  a  railroad  company  to  appropriate  the  waters  under  the  surface 
of  the  right  of  way.  In  a  Massachusetts  case7  it  was  held  that  the  railroad 
company  acquired  only  a  special  right  to  the  use  of  the  land  upon  the  express 
condition  that  it  should  pay  all  damages  which  might  be  occasioned  to  others. 

Sometimes  it  is  expressly  provided  by  statute  that  charter  companies 
should  be  liable  for  consequential  damages.8  The  doctrine  that  the  draining 
and  destruction  of  a  well  by  an  adjoining  owner  of  land  exercising  his  right 
to  dig  therein  is  damnum  absque  injuria  where  the  well  is  not  supplied  by  a 
distinct  vein  of  water,  has  no  application  where  such  draining  and  destruction 
are  caused  by  the  construction  of  a  tunnel  for  the  water-supply  of  a  city,  under 
authority  of  an  act  of  Congress,  over  land  in  which  a  right  of  way  only  is 
acquired,  and  the  act  provides  a  remedy  for  such  an  injury.9  When  a  statute 
makes  a  town  liable  for  "damages  occasioned  by  laying  out,  making,  or 
maintaining"  a  sewer,  and  another  statute  which  applies  to  sewers  provides 
that,  in  estimating  the  damage,  "  regard  shall  be  had  to  all  the  damages 
done  to  the  party  whether  by  taking  his  property  or  injuring  it  in  any 
manner,"  a  town  which  lawfully  takes  land  and  constructs  a  common  sewer 
therein,  whereby  a  well  upon  land  not  taken,  or  adjoining  land  taken,  is 

1  Cross,   v  Kitts  (Cal.),  22  The  Reptr.  Jamaica  Pond  Aq.  Co.,  133  Mass.  488. 
361  [1886].  7  Parker  v.  Boston  R.  Co.,  3  Cush.  114. 

2  Reg.   v.  Metropolitan  Bd.  Wks.,  36.  8  Parker  v.  Boston,  etc.,  Railroad  Co., 
&  S.  710.  supra;    Trowbridge    v.    Brookline,     144 

3  Elster  v.  Springfield,  49  Ohio  St.  82,  Mass.   139;    Aldridge    v.   Cheshire   Rail- 
30 'N.  E.  Rep.  274.  road  Co.,  21  N.  H.  359. 

4  Alexander  v.  United  States,  25  Ct.  of  9  United  States  v.  Alexander,  13  Sup. 
Q.  87.  Ct.  Rep.  529,  532;  Manufacturing  Co.  z>. 

s  New  Albany,  etc.,  R.  Co.  v.  Peterson,       Atty.  Genl.,  124  U.  S.  581,  8  Sup.  Ct.  Rep, 
14  Ind.  112.  631. 

8  See    cases    cited    supra    and    Hart    v. 


1 67  SUBTERRANEAN   OR    UNDERGROUND    WATERS.  §  256. 

made  dry,  the  well  being  fed  by  water  percolating  through  the  soil,  is  liable 
to  pay  damages  therefor  to  the  owners  of  the  land  in  which  the  well  is 
situated.1 

An  Iowa  case  held  that  where  a  railroad  company  acquired  the  right  of 
way  over  and  through  land  for  all  purposes  connected  with  the  use,  construc- 
tion, and  occupation  of  its  railroad,  it  had  the  legal  right  to  dig  a  well  upon 
such  right  of  way  and  to  use  the  water  supplied  by  percolation  for  railroad 
purposes,  although  it  did  materially  diminish  a  grantor's  spring.2 

A  city  is  not  liable  to  an  abutting  lot-owner  for  damages  where,  by  build- 
ing a  sewer  in  the  street  or  making  any  other  legitimate  use 'thereof,  it  drains 
a  spring  on  his  lot  by  cutting  off  the  water  which  for  twenty-one  years  has 
supplied  it  by  percolation  through  the  soil  of  the  street,  since  the  owner  of 
land  cannot  by  prescription  acquire  any  right  to  percolating  water.3 

A  city  was  held  liable  for  damages  caused  by  lowering  the  level  of  under- 
ground waters  under  another's  land  by  the  operation  of  a  pumping  station 
connected  with  its  water-works.4 

256.  Subsurface  Currents  Known  and  Defined. — If  subsurface  currents 
or  percolations  flow  in  defined  and  known  channels,  then  they  are  governed 
by  the  laws  and  principles  which  apply  to  watercourses.  The  word  "defined" 
as  used  in  this  description  means  a  constricted  and  bounded  channel,  though 
its  course  maybe  undefined  by  human  knowledge,  and  "known"  refers  to 
knowledge  by  reasonable  inferences.5  If,  in  order  to  determine  the  existence 
of  subterranean  channels,  it  is  necessary  to  resort  to  excavations,  then  it  is 
not  considered  as  "  known  "  within  the  meaning  of  the  law.6  Methods  fre- 
quently resorted  to  to  determine  if  the  underground  waters  have  a  well- 
defined  and  known  course  is  by  the  introduction  of  some  highly  colored  or 
strongly  smelling  material  at  the  source,  and  detecting  by  the  sense  of  sight 
or  smell  the  presence  of  it  at  some  point  lower  down  and  supposed  to  be  on 
the  watercourse.  The  mere  fact  that  the  quantity  of  water  at  a  place  has 
been  diminished  in  proportion  to  that  at  the  source  may  be  some  evidence 
that  both  are  upon  the  same  subsurface  current;  but  when  water  from  a 
spring  disappears  upon  a  person's  land,  and  it  is  desired  to  prove  that  the 
waters  of  this  spring  form  part  of  a  stream,  it  is  not  sufficient  to  show  that, 
since  the  diversion  of  the  waters  of  the  spring,  the  waters  in  the  stream  and 
in  the  wells  of  people  near  it  have  perceptibly  diminished.  Especially  is  this 
not  conclusive  evidence  that  they  have  a  common  source  when  the  defendant 
or  owner  of  the  land  upon  which  the  spring  is  diverted  showed  that  there 
has  been  less  rainfall,  that  the  timber  about  certain  other  springs  from  which 

1  Trowbridge    v.    Town    of    Brookline  *  Forbell  v.  City  of  New  York,  56  N.  Y. 

(Mass.),  10  N.  E.  Rep.  796  [1887].  Supp.  790  [1899];  Smith  v.  Brooklyn,  18 

1  Hougan  v.  Milwaukee,  etc.,  R.  Co.,  App.  Div.  340. 

35  la.  558.  5  Gould  on  Waters  (2d  ed.)  81. 

3  Elster  v.  Springfield  (Ohio  Sup.),  30  6  Ewart  v.  Belfast  P.  L.  Guard.,  9  L. 

N.  E.  Rep.  274.  R.  Ir.  172. 


•§  257.  OPERATIONS  PRELIMINARY    TO    CONSTRUCTION.  1 68 

water  flowed  into  the  stream  had  been  cut,  that  more  land  had  been  plowed 
and  more  stock  kept  along  the  stream,  and  that  in  a  canyon  located  near  the 
point  where  the  water  from  the  spring  disappeared  water  flowed  only  for  a 
few  days  during  a  season  of  heavy  rain;  and  in  addition  thereto  expert 
.geologists  testified  that  the  formation  in  the  vicinity  of  the  spring  was  such 
as  to  exclude  any  probability  that  the  waters  thereof,  after  disappearing  in  the 
ground,  reappeared  to  form  part  of  said  stream. 1 

257.  Presumption  that  Waters  are  Percolating. — If  it  does  not  appear 
that  the  waters  which   came  to  the  surface  are  supplied  by  a  defined  and 
known  flowing  stream,    it  will  be  presumed  to  be  formed  by  the  ordinary 
percolations   of   water   in   the   soil,    and   therefore    subject   to   no   legitimate 
purpose  of  the  owner  of  the  soil,  even  though,  as  a  result  thereof,  they  are 
polluted,  diminished,  or  diverted  from  land  to  which  they  would  otherwise 
.naturally  have  passed. a     The  onus  of  proof  lies,  therefore,  upon  the  plaintiff 
.claiming  that  the  waters  flow  in  a  well-defined  and  known  channel,  and  it 
requires    him    to    show  that    the    stream  when   it  emerges  into  light  comes 
irom,   and  has  flown  through,   a  well-defined  subterranean  channel,   and  to 
show  this   without   opening   the   ground   by   excavation   or  having  recourse 
to  abstruse  speculations  of   scientific  persons.      It  should  be  ascertainable  by 
.men  of  ordinary  powers    and    attainments   exercising   reasonable  diligence.3 
When  there  is  a  controversy  respecting  the  use  of  the  waters  of  a  channel,  and 
in  the  absence  of  anything  to  show  that  it  is  defined  by  any  flowing  water,  it 
will  be  presumed  to  be  formed  from  the  ordinary  percolations  of  water  and  of 
the  soil.4 

Where  the  waters  of  a  stream  gradually  disappear  and  percolate  through 
the  sand,  within  limits  not  at  all  defined,  except  by  the  valley  in  which  the 
stream  is  located,  over  an  impervious  substratum,  thus  finding  their  way  to  a 
lake,  a  riparian  owner  on  an  outlet  to  the  lake  has  no  right  to  have  such 
underground  flow  protected.5  A  mere  rivulet,  in  regard  to  the  right  of  the 
owner  to  complain  of  its  diversion  by  the  owner  of  adjacent  land,  is  to  be 
classed,  not  with  running  streams,  but  with  percolating  water.6 

258.  Appropriation   and   Use   of  Subterranean   Currents. — When  it  is 
determined  that  water  flows  in  a   defined   subterranean   stream,    no   one    of 
several  persons  whose  wells  tap  the  same  channel  can  make  an  artificial  use 
of  the  water  so  as  entirely  to  deprive  the  others  of  it.7     When  such  waters  are 
used  for  water-supply  by  a  city,  and  it  is  also  used  by  an  individual  for  the 

1  Farwell   v.  Sturgiss  W.  Co.  (S.   D.),  see  Ocean  Grove  C.  M.  Assn.  v.  Asbury 
73  N.  W.  Rep.  916  [1898].  Pk.  Comrs.,  40  N.  J.  Eq.  447;  Meyer  v. 

2  Hanson  v.  McCue,  42  Cal.  303;  Tampa  Tacoma  Co.  (Wash.),  35  Pac.  Rep.  601. 
W.-w.   Co.   v.   Cline  (Fla.),  20   So.   Rep.  5  Meyer  v.  Tacoma  Light  &  Water  Co. 
780;  semble  Meyer  v.-  Tacoma  Lt.   &  W.  (Wash.),  35  Pac.  Rep.  601. 

Co.  (Wash-.),  35  Pac.  Rep.  601.  6  Merrick  Water  Co.  v.  City  of  Brook- 

3  Black  v.  Ballymera  Corcmrs.,  L.  R.  17       lyn  (Sup.),  53  N.  Y.  Supp.  10  [1898]. 

Jr.  474.  7  Willis  v.  Perry  (la.),  60  N.  W.   Rep. 

4  Hanson  v.  McCue,  42  Cal.  303.     And      727. 


169  SUBTERRANEAN.  OR    UNDERGROUND    WATERS.  §  260. 

operation  of  public  bath-houses,  the  latter  use  is  an  artificial  use  of  such 
waters.1  The  owner  of  land  over  a  subterranean  stream  may  excavate  the  soil 
so  as  to  render  the  water  available  for  his  use,  if  by  doing  so  he  does  not 
pollute  the  water  or  diminish  its  flow  perceptibly  or  divert  it  from  its  natural 
course. 2 

259,  Underground  Currents  Compared  with  Watercourses. — The  same 
general  principles  of  the  law  which  apply  to  watercourses  and  streams  at  the 
surface    of  the   earth   will    apply   to    well-defined    and    known    subterranean 
streams.      No  distinction   exists  between  surface   and  subterranean  streams. 
If  the  latter  are  well  defined  and  constitute  a  regular  stream,   one    cannot 
divert  them  or  interfere  with  the  rights  of  the  owner  below  him.3     If  a  subter- 
ranean stream  emerges  and  afterwards  sinks  and  re-emerges,  and  if  it  has  an 
exact  course  that  can  be  traced,  the  lower  riparian  owner  will  be  protected 
against  diversion  or  pollution  of  the  water.4     If  the  course  be  well  known,  as 
is  often  the  case  where  it  sinks  underground  for  a  short  distance  and  then 
emerges  again,  it  cannot  be  contended  that  the  owner  of  the  soil  in  which  the 
stream  flows  cannot  maintain  an  action  for  the  diversion  of  it.5 

In  limestone  countries  streams  of  great  volume  and  power  flow  through 
subterranean  courses  for  great  distances  and  then  emerge  from  their  caverns, 
furnishing  power  for  machinery  of  every  description,  and  supply  towns  and 
dwellings  with  water,  for  domestic  and  sanitary  purposes.  To  permit  these 
streams  to  be  obstructed  or  diverted  merely  because  they  run  through  sub- 
terranean channels  would  be  to  forfeit  the  rights  of  mankind  in  relation  to 
flowing  water.6  The  growth  of  certain  shrubs  and  bushes  which  grow  nowhere 
except  where  there  is  water  has  been  held  to  mark  a  well-defined  channel  of  a 
subterranean  stream.7  To  constitute  a  well-defined  and  regular  underground 
stream  it  is  not  necessary  that  the  flow  should  be  continuous.  It  should, 
however,  be  well  known.8  The  fact  that  water  fails  to  flow  to  a  spring  when 
the  water  was  drained  from  a  natural  opening  on  higher  ground  is  not  of 
itself  sufficient  to  show  that  the  water  flowed  in  a  well-defined  channel.9 

260.  Grants  of  a  Right  to  Underground  Waters. — When  the  owner  of 
land  has  sold  or  granted  to  another  certain  rights  in  a  water-supply,  he  may 
not  destroy  that  water-supply  without  making  himself  liable  for  the  interfer- 
ence  therewith.      If  a  grant  of  water,    either  express  or  implied,    has  been 
made  to  secure  to  the  grantee  a  regular  supply  of  water,  the  grantor  will  be 
liable  if  by  any  interference  either  of  well-known  watercourses  or  by  under- 

1  Willis  v.  Perry  (la.),  60  N.  W.   Rep.  6  Wheatley  v.  Baugh,  25  Pa.  St.  528. 
727.  7  Hale  v.  McLea,  52  Cal.  581. 

2  Tampa  W.-w.  Co.  v.  Cline  (Fla.),  20  8  Chase    v.    Silverstone,    62    Me.    175  ; 
So.  Rep.  780.  Shively  v.   Hume,   10  Ore.  76;  Ewart  v. 

3  27  Amer.  &  Eng.  Ency.  Law  424.  Belfast    P.   L.    Guard.,   L.   R.  9    Ir.   172. 

4  Saddler  v.  Lee,  66  Ga.  45;  Whetstone  See    Meyer    v.    Tacoma    Lt.    &    W.    Co. 
v.  Bowser,  29  Pa.  St.  60.  (Wash.),  55  Pac.  Rep.  601. 

5  Dickinson  v.  Grand  J.   Canal  Co.,  7  9  Taylor  v.  Welch,  6  Ore.  200. 
Exch.  282. 


§  26 1.          OPERATIONS  PRELIMINARY    TO    CONSTRUCTION. 

ground  operations  he  diminishes  such  supply  of  water.  A  landowner  who 
has  granted  to  a  cheese-factory  situated  on  his  land  the  use  of  water  conducted 
to  the  factory  from  springs  on  the  owner's  land,  and  who  has  undertaken  to 
warrant  and  defend  the  granted  premises  against  himself  and  all  other  persons, 
will  be  held  liable  for  withdrawing  the  supply  from  such  springs.1 

The  grantee  is  not  bound  to  maintain  the  spring  in  the  exact  spot  in  which 
it  first  existed ;  and  if  the  water  was  supplied  to  grantor  from  another  spot, 
it  could  not  be  said  that  the  grantee  had  destroyed  the  spring  in  the  sense  of 
the  contract  and  in  violation  of  it,  as  when  the  source  has  been  sapped  by 
quarrying  stone.  * 

A  grant,  however,  of  a  right  simply  to  dig  and  stone  up  a  certain  spring, 
and  to  conduct  the  water  through  the  grantor's  land,  with  a  covenant  of 
warranty,  was  held  not  to  preclude  the  grantor  from  sinking  another  spring 
on  h4s  land,  although  the  effect  of  it  was  to  render  the  spring  granted  useless, 
provided  such  act  was  not  done  maliciously.  In  this  case  the  parties  were 
considered  in  the  same  light  as  adjacent  owners,  and  the  law  applicable  to 
adjoining  owners  was  applied,  which  permits  the  neighbor  to  dig  on  his  own 
land,  though  the  effect  might  be  to  cut  off  the  water  from  the  plaintiff's 
spring  by  percolation.  The  grant  was  merely  to  the  right  of  the  spring,  and 
did  not  secure  to  him  any  greater  rights  than  such  as  he  would  have  had  if  he 
had  owned  the  land  on  which  it  was  situated.3  In  another  case,  where  a  man 
owned  two  adjoining  farms,  upon  one  of  which  there  was  a  spring  from  which 
pipes  had  been  laid  conducting  the  water  to  the  barnyard  of  another  farmer, 
thus  furnishing  water  for  his  stock  and  other  domestic  purposes,  and  the 
common  owner  of  the  two  farms  sold  and  conveyed  the  former,  so  supplied 
with  water,  by  a  deed  conveying  the  land  with  appurtenances,  but  made  no 
mention  of  a  spring  or  pipes,  it  was  held  that  when  the  former  owner  dug  a 
well  upon  his  farm  a  few  feet  from  the  spring,  which  resulted  in  lowering  the 
water  of  the  spring  below  the  mouth  of  the  pipes  so  as  to  deprive  the  purchaser 
of  the  use  of  the  water,  he  might  restrain  the  vendor  from  the  use  of  the 
well  causing  the  injury.4 

261.  Rights  to  Waters  of  Springs  and  Wells  as  between  Grantor  and 
Grantee. — If  the  grant  be  merely  of  the  land  so  as  to  make  the  grantee  the 
ownerthereof,  he  has  not  any  better  rights  than  if  he  had  been  the  original 
proprietor  of  the  soil,  and  his  neighbor,  even  though  he  may  be  the  grantor, 
may  drain  the  lands  as  he  sees  fit,  although  such  act  interfere  with  the 
grantee's  water-supply.5 

A  grant  of  certain  springs  or  a  fountain  of  water  has  been  held  not  to 

1  Johnston  Cheese  Mfg.  Co.  v.  Veghte,       But   see   Davis    v.    Spalding   (Mass.),  32 
69  N.  Y.  16;  Chamberlain  v.  B.  &  O.  R.       N.  E.  Rep.  650. 

Co.  (Md.),  8  Atl.  Rep.  267  [1887].  5  Chessley  v.  King,  74  Me.  164;  Davis 

2  Chamberlain  v.  B.  &  O.  R.  Co.  (Md.),       v.    Spalding,    157    Mass.    431  ;    Bliss   v. 
8  Atl.  Rep.  267  [1887].  Greeley,  45  N.  Y.  671;   Brain  v.  Marfell, 

3  Bliss  v.  Greeley,  45  N.  Y.  671.  41  L.  T.  N.  S.  455;  McNab  v.  Robertson 
*  Paine    v.    Chandler,    134   N.  Y.  385.       (Eng.),  App.  Cas.  129  [1896]. 


171  SUBTERRANEAN   OR    UNDERGROUND    WATERS.  §262. 

prevent  the  owner  from  properly  draining  his  land  to  make  it  productive,  even 
though  by  some  unknown  means  the  drainage  of  the  land  affects  the  water- 
supply.1  The  grant  of  an  easement  to  draw  water  from  a  well  by  a  pipe  laid 
in  the  ground  does  not  preclude  the  grantor  or  a  subsequent  purchaser  from 
digging  another  well  or  reservoir  on  his  land,  even  though  it  destroy  the  form 
of  the  easement  by  diverting  the  waters  which  formerly  percolated  into  the 
well.2  The  purchaser  of  land  subject  to  the  reservation  that  B.  should 
have  the  right  to  conduct  water  from  certain  springs  thereon  to  adjoining 
lands  does  not  prevent  the  owner  of  the  land  on  which  the  spring  is  located 
from  excavating  so  as  to  cut  off  the  supply  of  water.3 

One  who  purchases  a  well  and  the  right  to  convey  water  from  it  acquires 
merely  a  right  to  water  rising  in  the  well,  and  has  no  cause  of  action  against 
one  who  intercepts  the  water  before  it  reaches  the  well.4  The  grant  of  a  well 
has  been  held  to  pass  the  fee  of  the  land  occupied  by  the  well.5  The  grant 
of  a  privilege  of  taking  water  from  springs  gives  the  owner  a  right  to  take  the 
water  that  issues  from  the  ground  by  natural  forces.  It  does  not  include 
wells  from  which  the  water  does  not  flow  to  the  surface.6 

262.  Prescriptive  Rights  in  Underground  Waters. — The  use  of  under- 
ground percolating  waters  for  a  great  length  of  time  does  not  give  to  the 
person  utilizing  such  waters  a  prescriptive  right  to  receive  such  percolations 
through  the  land  of  another.7  Each  owner  of  land  has  an  equal  and  complete 
right  to  the  use  of  his  land  and  to  the  water  which  is  in  it.  Water  combined 
with  earth  or  passing  through  it  by  percolation  or  filtration  has  no  distinctive 
character  of  ownership  from  the  earth  itself,  not  more  than  the  metallic  oxides 
of  which  the  earth  is  composed.  A  man  may  not  know  that  his  neighbor's 
well  is  supplied  by  water  percolating  from  his  own  soil,  and  'he  should  not, 
therefore,  be  held  to  have  lost  his  rights  by  permitting  such  continued  use  of 
the  water.  He  cannot  know  that  his  neighbor's  well  requires  any  other  than 
the  natural  and  common  use  of  the  water  under  the  surface,  nor  does  he  know 
whence  the  water  comes,  nor  by  what  means  it  appears  in  one  place  or  the 
other,  or  which  of  the  persons  who  afterwards  opened  the  earth  encroaches 
upon  the  rights  of  the  other.8  No  prescriptive  right  can  arise  against  any 
party  unless  the  privilege  exercised  interferes  in  some  way  with  the  rights  of 
the  party  against  whom  the  grant  is  presumed.  In  the  case  of  a  watercourse 
the  right  of  the  riparian  owner  is  not  from  the  presumed  grant,  but  is  a  right 
incident  to  the  property  itself. 

1  Buffum  v.  Harris,  5  R.  I.  243.  Conroe,  38  Vt.  469. 

2  Davis    v.    Spalding,    157    Mass.    431;  7  Elster  v.  Springfield,  49  Ohio  St.  82; 
So.  Pac.  R.  Co.  v.  Dufour  (Cal.),  30  Pac.  Dickinson  v.  Gd.  Jc.  Canal  Co.,  L.   R.  7 
Rep.  783.  Exch.   282;  Wheelock  v.  Jacobs  (Vt.),  40 

3  Lybe's  Appeal,  106  Pa.  St.  626.  Atl.  Rep.  41  [1897]. 

4  Brain  v.  Marfell,  41  L.  T.  N.  S.  455.  8  Roath    v.    Driscoll,    20    Conn.    533  ; 
And  see  Huston  v.  Leach,  53  Cal.  262.  Frazier    v.     Brown,    12    Ohio    St.     294; 

8  Johnson   v.   Rayner  (Mass.),   6  Gray       Trustees  of  Delhi  v.  Youmans.  50  Barb. 
107.  (N.  Y.)  316;  Cross  v.  Kitts  (Cal.),  22  The 

6  Mixer  v.   Reed,  25  Vt.  254;  Clark  v.       Reptr.  361  [1886]. 


§263.          OPERATIONS  PRELIMINARY    TO    CONSTRUCTION. 

263.  Pollution  of  Underground  Waters. — Although  a  person  may  exer- 
cise his  right  to  take  from  his  neighbor,  percolating  underground  waters  to  the 
latter's  injury  and  loss,  yet  he  may  not  poison,  pollute,  or  contaminate  the 
percolating  waters  of  his  own  land  which  percolate  from  his  soil  into  that  of 
the  adjoining  landowner.      If  he  permit  the  seepage  of  poisoned  and  polluted 
waters  from  his  land  into  that  of  his  neighbor  to  the  injury  of  the  latter,  he 
will  be  liable  for  the  damages  suffered. l    Any  person  who  collects  or  negligently 
allows  deleterious  or  dangerous  substances  to  remain  upon  his  land,  whereby 
the  usefulness  and  enjoyment  of  his  neighbor's  land  is  destroyed,  will  be  held 
liable  for  the  injury  resulting.      If  the  neighbor's  useful  waters  be  corrupted 
either  by  the  ordinary  or  extraordinary,  yet  not  very  uncommon,  action  of  the 
elements,  he  will  be  liable.2     He  must  keep  such  filth  and  dangerous  sub- 
stances upon  his  own  premises  at  his  peril.3 

264.  Pollution  by  Oil,  Tar,  etc.,  Soaking  into  Ground. — One  who  stores 
oil  upon  his  premises  will  be  liable  if  he  allow  it  to  leak  from  the  cask  or  tank 
in  which  it  is  stored  and   pass  into  the  ground  and  pollute  the  stream  from 
which  the  plaintiff's  spring  is  supplied;   and  this  was  held  to  be  true  even 
though  the  defendants  were  ignorant  that  the  oil  was  affecting  the  stream.4 
In  this  case  the  court  said:   "  An  owner  has  the  right  to  take  and  appropriate 
underground  water,  and  thus  prevent  its  use  by  another,  and  yet  he  has  no 
right  to  poison  it,  however  innocently,  or  to  contaminate  it  so  that  when  it 
reaches  his  neighbor's  land  it  is  in  such  condition  as  to  be  unfit  for  use  either 
by  man  or  beast.      The  owner  of  land  has  the  same  right  to  the  use  and  enjoy- 
ment of  the  water  that  is  around  and  through  his  premises  as  he  has  to  use  and 
enjoy  the  water  above  ground.      He  is  entitled  to  the  use  of  what  is  above  the 
ground  as  well  as  that  below  it,  and  it  can  scarcely  be  insisted  that  he  can 
poison   the  atmosphere   with  noxious  odors  that   reach  the  dwelling  of  his 
neighbor  to  the  injury  of  himself  or  family.      We  see  no  reason  why  he  should 
be  permitted  to  contaminate  the  water  that  flows  from  his  land  to  his  neighbor, 
producing  the  same  results,  and  so  escape  the  liabilities  of  the  damages  sus- 
tained.    Whether  the  water  escapes  one  way  or  the  other  is  immaterial."5 
Recovery  has  been  allowed  for  the  contamination  of  springs  or  wells  by  per- 
mitting gas  to  escape  therein,6  and  by  locating  and  maintaining  a  cemetery  or 
private  burial-ground.7 

The  fluids  from  gas-works,  and  the  gas  itself,  when  allowed  to  permeate 

1  27  Amer.  &  Eng.  Ency.  Law  436,  and  5  Prior,  Justice,  in  Kinnaird  v.  Stand- 
many  cases  cited.  ard  Oil  Co.,  89  Ky.  469. 

2  Woodward  v.  Aborn,  35  Me.  271.  6  Sherman     v.     Fall     River     I.     Wks. 

3  Tenant  v.  Goldwin.  6  Wood  311.  (Mass.),  5  Allen  213;  Shuter  v.  The  City, 

4  Kinnaird  v.  Standard  Oil  Co.,  89  Ky.  3    Phila.  (Pa.)  228;    Millington   v.   Rich- 
469;  Carhart  v.  Auburn  G.  L.  Co.  (N.  Y.),  ards,  23  Gas  J.  215. 

22   Barb.  297;  Brown  v.  Illius,  27  Conn.  7  27   Amer.  &   Eng.   Ency.   Law  438,   8 

84;    Millington    v.    Richards    G.    Co.,   25       idem.  1281;   Pensacola  Gas  Co.  v.  Pebley 
Gas  J.  215.  (Fla.),  5  So.  Rep.  593  [1889],  gas  refuse. 


173  SUBTERRANEAN   OR    UNDERGROUND    WATERS.  §266.. 

soil  to  the  injury  of  wells  and  springs,  polluting  the  waters,  render  the  owners 
liable  for  the  injury.1 

The  fact  that  other  causes  have  contributed  to  render  the  water  of  the  well 
impure  and  unfit  does  not  prevent  the  recovery  of  damages  due  to  the  cause 
complained  of.2  When  sickness  was  caused  by  a  mixture  of  illuminating-gas 
and  sewer-gas  which  had  found  its  way  into  plaintiff's  house  through  various 
drains  and  sewers,  the  gas  company  was  held  liable  if  the  combined  gases 
were  carried  to  the  house  by  the  illuminating-gas,  which  had  escaped  by  the 
company's  negligence.3 

265.  Contamination  that  Amounts  to  a  Nuisance. — The  percolation  and 
contamination   is  frequently   required    to   be   so   serious   as   to   constitute  a. 
nuisance,  and  the  question  whether  it  is  a  nuisance,  and  the  damage  therefrom 
substantial,  is  for  the  jury.4     This  is  always  so  where  the  plaintiff  has  suffered 
no   special   damage.     To   establish   the    conducting  of   a    lawful  business  a 
nuisance,    it  need   not   be  shown  that  it  was  carried   on  recklessly  or  was- 
improperly  managed.4 

266.  Fouling  or  Contaminating  the  Land  of  Adjoining  Owners. — The 
landowner  is  liable  if  he  permits  sewage  from  his  house  to  flow  into  the  well 
of  a  neighbor.5     In  this  case  the  court  said:   "  The  right  to  foul  water  is  not 
the  same  as  the  right  to  get  it,  and  does  not  depend  upon  the  same  principles. 
Prima  facie  every  man  has  a  right  to  get  from  his  own  land  water  which  is 
naturally  found  there,  but  it  frequently  happens  that  he  cannot  do  this  with- 
out diminishing  his  neighbor's  supply.      In  such  a  case  the  neighbor  must 
submit  to  the  inconvenience;  but  no  man  has  a  right  to  use  his  own  land  in 
such  a  way  as  to  be  a  nuisance  to  his  neighbor;  and  whether  the  nuisance  is 
effected  by  sending  filth  into  his  neighbor's  land,  or  whether  the  nuisance  is 
effected  by  poisoning  the  air  which  his  neighbor  breathes  or  the  water  he 
drinks,  is  wholly  immaterial.      If  a  man  choose  to  poison  his  own  well,  he 
must  take  care  not  to  poison  the  waters  which  other  persons  have  a  right  to 
use  as  much  as  himself.      To  hold  to  the  contrary  on  the  ground  that  the 
water  is  not  the  neighbor's  property  until  he  gets  it,  and  that  it  is  poisoned 
before  he  gets  it,  would  be  to  take  an  inadequate  view  of  the  subject  and  to 
overlook  the  fact  that  the  law  of  nuisances  is  not  based  exclusively  upon 
rights  of  property. ' ' 

The  ground  upon  which  the  landowner  who  contaminates  underground 
water  is  made  liable  is  that  his  acts  in  polluting  the  water  amount  to  a 
nuisance;  and  in  some  cases  the  true  cause  of  action  is  not  based  upon  con- 

1  Ottawa  Gas   Lt.   Co.   z/.   Graham,   28  3  Hunt    v.  Lowell   Gas   Co.  (Mass.),  8- 
111.   74;    Pottstown   Gas  Co.  v.   Murphy,       Allen  169. 

39   Pa.    St.    257  ;    Columbus    Gas   Co.    v.  4  Gavigan    v.    Atlantic     Refining    Co. 

Freeland,   12   Ohio    St.   392;    8  Amer.    &  (Pa.),  40  Atl.  Rep.  834  [1898]. 

Eng.  Ency.  Law  1281,  and  cases  cited.  5  Ballard   v.  Tomlinson,    29    Ch.    Div. 

2  Sherman  v.  Fall  River  Co.  (Mass.),  5  125. 
Allen  213. 


§26/.          OPERATIONS  PRELIMINARY    TO    CONSTRUCTION. 

tarnination  of  underground  percolating  waters,  but  upon  the  negligence  of  the 
owner  in  allowing  his  impure  sewage  or  polluted  matter  to  escape  from  his 
premises  to  those  of  his  neighbor,  and  the  circumstance  that  it  reached  there 
by  underground  percolations,  instead  of  by  a  surface  stream  or  conveyance  of 
the  water,  is  quite  immaterial.  The  mode  of  transmission  is  unimportant.1 

267.  Negligence  an  Element  in  Determining  Liability  for  Fouling  Sub- 
terranean Waters. — There  are  cases  to  the  contrary  in  which  courts  have  held 
that  a  person  was  not  liable  for  the  contamination  of  underground  waters, 
but  it  cannot  be  denied  that  they  are  exceptions  to  the  general  rule.2     While 
the  law  upon  this  question  appears  to  be  well  settled  that  if  a  landowner 
permit  a  deleterious  substance  to  escape  into  the  ground  to  the  injury  of  his 
neighbor's  well  or  spring,  he  is  liable  therefor,  yet  it  would  appear  to  the 
author  that  there  must  be  shown  some  element  of  negligence  upon  the  part 
of  the  landowner  in   order  to   hold   him  for   the  damages  suffered   by  his 
neighbor.      It  is  hard  to  distinguish  between    a  damage  conveyed  to  one's 
neighbor  by  the  medium  of  the  water  from  an  injury  conveyed  by  the  medium 
of  air  or  other  common  phenomena  of  nature.      If  the  landowner  store  casks 
of  oil  in    his  warehouse  and  by  accident  they  spring  leaks  permeating  the 
soil  and  contaminating  the  waters  of  his  neighbor,  it  seems  he  is  liable  for  the 
injury  resulting  therefrom.3     No  question  of  negligence  seems  to  have  been 
raised  in  the  case.      If,  however,  by  accident  the  same  casks  of  oil  had  taken 
fire  and  destroyed  the  neighbor's  buildings,  his  liability  for  the  injury  suffered 
by  his  neighbor  would  depend  upon  whether  he  had  exercised  ordinary  care 
and  had   not  been   negligent.     To   distinguish  between  the  two   cases,   the 
ground  of  liability,  it  seems  to  the  author,  must  be  that  of  negligence,  and  if 
the  owner  of  the  oil  that  contaminated   the  spring  had  exercised  due  and 
proper  care,  it  is  doubtful  if  he  could  have  been  held  liable  for  the  damages 
to  his  neighbor. 

The  English  and  Massachusetts  courts  seem  to  require  that  negligence 
shall  be  shown.  If  the  defendant  has  exercised  due  and  proper  care  and  is 
ignorant  of  the  injury  caused,  it  will  defeat  a  right  of  action.  So  where  the 
defendant  had  dug  a  well  and  drawn  water  from  a  river  after  it  formed  part 
of  a  stream,  thus  preventing  the  plaintiff  from  working  his  mill  which  was 
situated  on  the  river,  it  was  held  that  an  action  would  lie.  "But,"  said 
justice  Pollock,  "if  it  appear  that  the  company  was  ignorant  and  could  not 
by  any  degree  of  care  have  ascertained  before  digging  the  well  that  it  would 
have  the  effect  of  diverting  the  water,  and  when  they  discovered  the  effect  of 
digging  the  well  they  could  not  have  repaired  the  mischief,  it  might  raise  the 
question  whether  the  cause  was  maintainable  or  not." 

1  Ballard  v.  Tomlinson,  29  Ch.  Div.  115.  8  Kinnaird  v.  Standard  Oil  Co.,  89  Ky. 
And  see  note  by  Hon.  Edmond  H.  Bennett       469. 

in  24  Amer.  Law  Reg.  634.  *  Dickinson  v.  Gd.  June.  C.  Co.,  L.  R. 

2  See  27  Amer.  &  Eng.  Ency.  Law  437,       7  Exch.  282. 
note. 


175  SUBTERRANEAN   OR    UNDERGROUND    WATERS.  §268. 

The  location  and  maintenance  of  cemeteries  and  burial-grounds  are  a 
frequent  cause  complained  of  by  owners  of  wells  and  springs,  and  reasonably 
so.  The  use  of  such  places  of  burial  is  not  necessarily  a  nuisance,  and  it  will 
usually  be  enjoined  only  upon  clear  proof  of  injury.1 

One  of  the  most  frequent  sources  of  contamination  of  waters  is  that  by 
cesspools,  sewage,  and  household  wastes.  If  one  surfer  filthy  water  from 
a  vault  to  percolate  or  filter  through  the  soil  to  the  injury  of  an  adjoining 
owner's  well  and  cellar,  and  it  is  done  habitually  and  within  the  knowledge 
of  the  owner  of  the  vault,  whether  it  pass  above  ground  or  below,  it  is  an 
actionable  tort.  The  law  requires  under  such  circumstances  that  the  owner 
shall  exercise  such  reasonable  precautions  as  effectually  to  exclude  the  filth 
from  his  neighbor's  land,  and  not  to  do  so  is  of  itself  negligence.2  If  the 
pollution  had  been  the  result  of  a  sudden  and  unavoidable  accident  which 
could  not  have  been  foreseen,  or  guarded  against  by  due  care,  doubtless  the 
owner  of  the  vault  would  not  have  been  liable  in  damages,  but  the  percolations 
appeared  to  have  been  constant  and  their  existence  to  have  been  known  to  the 
defendant.3 

If  filth  percolates  from  sewers  by  reason  of  their  faulty  construction  and 
finds  its  way  into  the  cellars  of  adjoining  premises,  the  owner  of  the  land  is 
liable  even  when  he  is  the  owner  of  the  premises  into  which  the  filth  perco- 
lates, and  the  party  complaining  is  his  own  tenant.4 

A  court  will  enjoin  the  erection  and  completion  of  a  privy  which  in  all 
probability  will  contaminate  the  well  of  a  neighbor.  Such  erections  are  con- 
sidered prima  facie  nuisances,  and  although  necessary  and  indispensable  in 
connection  with  the  use  of  property  for  habitation,  yet  if  built  and  allowed  to 
remain  in  such  a  condition  as  to  annoy  others  in  the  proper  enjoyment  of 
their  property  to  the  corruption  and  pollution  of  air  or  water,  they  are 
nuisances  in  fact.5  The  fact  that  a  neighbor  appropriates  polluted  water  by 
artificial  means,  as  by  pumping,  is  immaterial  where  the  right  to  the  water 
exists.6 

268,  If  Acts  Amount  to  Nuisance, — There  are  cases  in  which  the  pollut- 
ing or  poisoning  of  underground  waters  has  been  held  not  to  be  a  ground  of 
action,  and  these  cases,  as  before  stated,  may  be  reconciled  by  the  explanation 
that  the  use  to  which  the  property  has  been  put  and  which  has  caused  the 
injury  was  a  natural  and  proper  one,  and  that  the  owner  was  free  from  negli- 
gence. In  many  cases  the  question  is  not  one  of  property  rights,  but  whether 
or  not  the  defendant  is  guilty  of  a  nuisance.  Thus  in  a  case  where  the  owner 

1  Kingsbury  v.   Flowers,  65    Ala.  479;  *  Alston    v.    Grant,    3    El.    &    Bl.    128. 
Clark  v.   Lawrence  (N.  C.),  6  Jones  Eq.       And  see  27  Amer.  &  Eng.  Ency.  Law  439. 
53 ;  Greencastle  v.  Hazelett,  23  Ind.  186.  5  Wahle     v.     Reinbach,     76     111.     322; 

2  Ball  v.  Nye,  99  Mass.  582.  DeGive  v.   Seltzer,  64  Ga.  423;    Ross  v. 
9  See  Baird  v.  Williamson,  15  C.  B.  N.        Butler,  19  N.  J.  Eq.  294. 

S.  376;  Fletcher  v.  Rylands,   L.   R.  3  H.  6  Ballard    v.  Tomlinson,  29   Ch.  Div. 

L.  Cas.  330.  US- 


§269.          OPERATIONS  PRELIMINARY   TO    CONSTRUCTION.  1 76 

of  a  gas-works  has  negligently  and  improperly  placed  upon  the  surface  of  his 
land  and  along  the  line  of  his  neighbor's  land  and  in  his  land,  large  quantities 
of  coal-tar,  gas-lime,  and  other  offensive  and  noxious  materials,  which  are 
washed  by  the  surface-water  into  the  well,  and  the  same  soaked  and  per- 
meated into  the  ground  and  into  the  soil  adjoining  the  well,  whose  waters  are 
corrupted,  it  was  held  that  the  negligence  in  leaving  such  noxious  substances 
on  the  land  where  the  rain  could  wash  them  along  the  surface  of  the  ground 
into  the  neighbor's  well  was  actionable,  and  that  it  made  no  difference 
whether  the  substances  were  carried  along  the  surface  of  the  ground  or  were 
soaked  into  the  soil  and  by  means  of  water  diffused  according  to  natural 
laws.  But  the  court  held  further  that  where* such  noxious  substances  had 
been  buried  within  the  soil,  and  had  affected  the  subterranean  currents  of 
water  by  which  the  well  was  supplied,  and  had  corrupted  the  water,  the  party 
placing  the  substances  on  or  within  his  soil  was  not  liable  unless  he  acted 
maliciously.1 

269.  Negligence  may  Fix  Liability, — In  such  a  case,  if  negligence  can 
be  imputed  to  the  owner  of  property,  or  the  said  owner  had  knowledge  as  to 
the  existence  of  subterranean  watercourses,  there  is  little  doubt  but  that  he 
would  be  liable  for  the  injuries;  but  when  the  business  conducted  upon  one's 
land  is  legitimate  and  conducted  with  care  and  skill,  it  is  sometimes  held  that 
there  can  be  no  liability  if  such  subterranean  waters  become  contaminated. 
The  distinction  is  sometimes  made  between  a  contamination  by  soaking  or 
percolation.  Thus  where  an  adjoining  owner  has  dug  a  cesspool  within 
fourteen  yards  of  the  plaintiff's  well,  so  near  that  the  liquid  of  the  cesspool 
percolated  through  and  contaminated  the  well,  it  was  held  that  the  defendant's 
use  of  the  cesspool  should  be  restrained.2  It  will  be  observed,  however,  that 
the  contamination  was  by  soaking  or  percolating  of  the  sewage  matter  from 
the  cesspool,  and  was  not  from  the  contamination  of  subterranean  streams. 

Justice  Mitchell,  in  a  case  involving  the  question  of  pollution  of  under- 
ground waters,  has  said: 3  "  The  dividing  line;  between  the  right  to  use  one's 
own  and  a  duty  not  to  injure  another's  is  one  of  great  nicety  and  importance, 
and  frequently  a  difficult  one.  The  Pennsylvania  decisions  have  endeavored 
with  unusual  care  to  preserve  the  substance  of  both  rights  so  far  as  their 
sometimes  inevitable  conflict  may  permit.  With  regard  to  the  use  and 
control  of  flowing  water  and  of  watercourses,4  a  case  definitely  settled 
the  rule  that,  for  unavoidable  damages  to  one's  land  in  the  lawful  use 
of  one's  own,  no  action  can  be  maintained.  No  other  result  seems  possible 
without  restricting  the  use  derogating  from  the  full  enjoyment  and  diminish- 
ing the  value  of  property.  The  rule  does  not  go  beyond  proper  use  and 
unavoidable  damage.  Every  man  has  a  right  to  the  natural  use  and  enjoy- 

1  Brown  v.  Illius,  27  Conn.  84.  3  Collins  v.  Chartiers  Val.  Gas  Co.,  131 

2  Womersley  v.  Church,  17  L.  T.  N.  S.       Penn.  St.  143. 

190;  Norton  v.  Scholefield,   19  M.  &  W.  *  Pennsylvania  Coal  Co.  v.  Sanderson, 

665.  H3  Pa.  St.  126. 


177  SUBTERRANEAN  OR    UNDERGROUND    WATERS.  §271. 

ment  of  his  own  property,  and  if  while  lawfully  in  such  use  and  enjoyment, 
without  negligence  or  malice  on  his  part,  unavoidable  loss  occurs  to  his 
neighbor,  it  is  damnum  absque  injuria.  This  is  the  rule  as  to  surface-streams, 
but  it  is  contended  that  as  to  subterranean  streams,  or  at  least  percolation  of 
hidden  streams,  the  owner  was  not  bound  to  pay  any  attention  to  the  effect 
of  his  operations  within  his  own  land  upon  the  land  of  others.  .  .  .  The  use 
which  inflicts  the  damage  must  be  natural,  proper,  and  free  from  negligence, 
and  the  damage  unavoidable.  On  the  question  of  negligence  the  question 
of  knowledge  is  always  important  and  may  be  conclusive.  Hence  the 
practical  inquiry  is,  first,  whether  the  damage  was  necessary  and  unavoidable; 
secondly,  if  not,  was  it  sufficiently  obvious  to  have  been  foreseen,  and  also  to 
have  been  prevented  by  reasonable  care  and  expenditure  ? ' ' 

This  was  a  case  in  which  the  defendant  had  drilled  a  well  to  a  great  depth 
for  oil  or  gas,  and  with  knowledge  that  salt  water  would  probably  rise  and 
would  destroy  fresh-water  springs  and  wells  in  the  vicinity.  It  seems  that 
there  was  no  doubt  but  that  precaution  could  have  been  taken  to  prevent  this, 
and  it  was  held  that  the  absence  of  such  care  and  regard  for  the  rights  of 
others  as  a  prudent  and  just  man  would  and  should  have  taken  in  the  same 
situation  was  negligence.  If  it  were  shown  that  the  injury  was  plainly  to 
be  anticipated,  and  easily  prevented  with  reasonable  care  and  expense,  it 
brought  him  within  the  exception  of  all  cases  which  would  excuse  him  from 
liability.1 

If  an  owner  of  land  by  some  unlawful  or  unreasonable  use  or  sufferance 
allows  water  to  collect  upon  his  land  and  by  percolation  through  the  soil  it 
reaches  his  neighbor's  property  and  does  harm,  the  former  is  liable  for  the 
damages  sustained  by  the  latter. a  If  the  use  were  reasonable  and  lawful,  it 
is  doubtful  if  there  would  be  any  liability. 

270.  Injunction  will  Issue  to  Prevent  Fouling  of  Ground-waters. — To 
prevent  injury  by  the  percolation  of  contaminating  matter  into  the  ground,  a 
court  of  equity  will  grant  an  injunction.3     A  perpetual  injunction  was  granted 
to  prevent  the  flow  of  noxious  and  unfit  refuse  from  a  manufactory  onto  land, 
and  which  percolated  into  defendant's  coal-mines.4 

271.  Motive  an  Element  in  the  Destruction  of  Underground  Waters. — 
In  some  jurisdictions  the  courts  have  held  that  the  intent  or  motive  prompt- 
ing the  party  in  his  diversion  or  interference  of  underground  waters  was  an 
important  factor  in  determining  the  liability  for  the  act,  though  not  a  con- 
trolling element.5     If  the  motive  which  prompts  a  property  owner  to  interfere 
or  destroy  the  spring  or  well  of  his  neighbor  be  one  of  pure  maliciousness, 

1  Collins  v.  Chartiers  Val.  Gas  Co.,  131  2  Quinn  v.  Chicago,  etc.,  Ry.  Co.,  63 

Pa.  St.    143.     And  see   Pa.   Coal   Co.    v.  la.  510  [1884]. 

Sanderson,  113  Pa.  St.  126;  Wheatley  v.  3  27  Amer.  &  Eng.  Ency.  Law  438. 

Baugh,  25  Pa.  St.  528;  Acton  v.  Blundell,  4  Turner  v.  Mirfield,  34  Beav.  390. 

12   M.    &    W.    324;    Steele   v.    Todd   (Pa.  6  27  Amer.  &  Eng.  Ency.  Law  433. 

Sup.),  27  Atl.  Rep.  942. 


§2/2.  OPERATIONS  PRELIMINARY    TO    CONSTRUCTION. 

the  courts  have  sometimes  considered  this  motive,  and  have  held  the  party 
liable  for  the  damages  resulting.  It  has  been  held  that  law  would  not  permit 
a  man  to  deprive  another  of  a  well,  spring,  or  stream  of  water  for  the  mere 
gratification  of  malice.1 

It  has  been  held  to  present  a  very  different  question  when  one  made 
excavations  on  his  land  with  the  express  purpose  of  diverting  the  water  from 
his  neighbor's  spring  or  to  his  own  well,  knowing  that  this  would  be  a  natural 
result.2  Where  the  owner  of  land  on  which  springs  are  located  obstructed 
their  flow  maliciously  for  the  purpose  of  affecting  the  supply  of  one  obtaining 
water  therefrom,  to  compel  the  purchase  of  the  springs,  such  obstruction  was 
enjoined.3 

It  must  be  confessed  that  a  law  which  requires  the  court  to  inquire  into 
the  motive  of  the  person  in  the  operations  and  manipulations  of  his  own  land 
is  quite  contrary  to  the  general  purpose  of  the  law.  The  law  generally  deals 
with  the  outward  acts  of  the  person,  and  when  the  use  which  a  landowner 
makes  of  his  property  is  lawful  in  itself,  the  law  will  not  take  cognizance  of 
the  motive  which  prompts  that  use,  even  though  it  results  in  damage  to 
another.  The  exercise  of  the  legal  right  in  one's  own  property  should  not  be 
affected  by  the  motive  which  controls  it.  The  weight  of  authority  is  in  favor 
of  these  general  principles  of  the  law.4  The  refusal  or  discontinuance  of  a 
favor  can  give  no  cause  of  action. 5 

As  has  been  said  in  Pennsylvania,  malicious  motives  make  a  bad  act 
worse,  but  they  cannot  make  an  act  which  in  its  own  essence  is  lawful  a 
wrongful  act.6  Attention  should  not  be  given  to  the  alleged  motives  of 
persons.  Their  motives  are  immaterial;  the  question  is  only  as  to  their 
rights.7  If  an  act  be  lawful  in  itself,  resulting  in  injury  to  another,  whatever 
may  have  been  the  motive  with  which  it  was  done  is  in  law  a  matter  of 
indifference.8 

272.  Percolations  which  are  Artificial  or  Enforced. — Percolations  which 
are  natural  should  be  distinguished  from  those  which  are  caused  artificially, 
as  by  the  collection  and  storage  of  fluids  upon  one's  land.  If  a  person 
make  a  reservoir,  pond,  or  canal  upon  his  land,  and  bring  quantities  of 
water  thereon,  which  by  percolation  and  permeation  of  the  soil  injures  his 
neighbor,  he  is  held  liable  for  the  damages  resulting.9  A  canal  constructed 
by  authority  of  Parliament  in  such  a  manner  as  to  leak  into  and  cause  injury 
to  a  mill  has  been  held  a  sufficient  cause  to  render  the  company  owning  and 
operating  the  canal  liable  for  damages  if  guilty  of  negligence,  and  that  the 

1  Wheatlcy  v.   Baugh,   25    Pa.   St.   528;       Mass.  I. 

Wyandotte  Club  Co.  v.  Sells  (Com.  PL),  3  6  Jenkins  v.  Fowler,  24  Pa.  St.  308. 

Ohio  N.  P.  210.  7  Porter  v.  Durham,  74  N.  C.  767. 

2  Swett  v.  Cutts,  50  N.  H.  439.  8  Frazier   v.   Brown,   12    Ohio  St.   294; 

3  Springfield   Water-works  Co.   v.  Jen-  27   Amer.    &   Eng.    Ency.    Law  435,   and 
kins,  I  Mo.  App.  Reptr.  699.  cases  cited. 

*  27  Amer.  &  Eng.  Ency.  Law  434.  9  Wilson   v.   New   Bedford,    108    Mass. 

5  Mahan  v.  Brown,  13  Wend,  261.    And       261  [1871]. 
see  Old   Colony   River  Co.    i>.  Miller,  125 


179  SUBTERRANEAN  OR    UNDERGROUND    WATERS.  §273. 

canal  company  was  guilty  of  negligence  as  it  might  have  prevented  the 
damage.  The  same  doctrine  has  been  applied  in  Massachusetts,1  where  a 
city  was  authorized  to  take  water  from  the  Charles  River  for  a  water-supply 
by  a  statute  which  also  provided  that  the  town  should  be  liable  to  any  person 
injured  by  such  taking.  The  city  constructed  a  water-gallery  on  land  near 
the  river,  which  drew  off  by  percolation  the  waters  of  the  river  through  the 
natural  soil  between  the  gallery  and  the  river.  The  city  was  held  liable  for 
injury  by  such  taking.  The  court  said  that  a  different  question  was  presented 
where  the  owner  of  land  constructs  his  well  or  other  structure  in  such  a 
manner  as  to  create  an  artificial  underground  current  of  water  from  a  running 
stream,  thus  withdrawing  water  from  the  stream  into  his  own  land,  under  a 
claim  of  right  that  he  is  entitled  to  the  water  that  is  found  in  or  coming  to 
his  land.2  It  is  immaterial,  it  seems,  as  to  how  the  city  took  the  water, 
whether  by  pipes  or  by  percolation  through  an  artificial  or  natural  embank- 
ment between  the  gallery  and  the  river.3 

A  conveyance  of  land  for  the  purpose  of  erecting  a  reservoir  thereon  is  no 
bar  to  the  recovery  of  damages  by  the  grantor  for  injuries  resulting  to  his 
adjoining  land  from  percolations  through  the  soil  caused  by  the  pressure  of 
the  water  in  the  reservoir.4 

It  has  frequently  been  held  that  if  one  collects  and  stores  large  quantities- 
of  water,  as  in  a  reservoir,  and  permits  it  to  escape,  he  is  liable  for  the  conse- 
quences of  the  damage  to  others,  however  skillfully  and  carefully  the  accumu- 
lation was  made.5 

The  owner  of  a  quarry  has  been  held  not  liable  to  another  quarryman  for 
the  cost  of  pumping  water  from  his  quarry  which  found  its  way  there  from 
another  quarry  through  the  defendant's  quarry.6 

Property  owners  have  been  held  liable  for  the  wet,  unwholesome,  and 
unhealthful  condition  of  a  dwelling  which  was  caused  by  packing  against  a 
wall  large  quantities  of  soil,  coal,  and  limestone  refuse  through  which  the 
rain-water  oozed  and  percolated  through  the  wall  and  into  the  house.7 

When  noxious  matter  from  defendant's  factory  was  conveyed  by  a  sewer 
into  a  hollow  or  ravine,  and  ran  down  on  plaintiff's  land,  rendering  it  unfit 
for  occupancy  or  pasture  purposes,  it  is  immaterial  whether  the  ravine  con- 
tained a  watercourse,  or  whether  the  noxious  matter  was  carried  down  the 
ravine  by  a  violent  rain-storm,  or  by  water  in  the  ravine.8 

1  JEtna.  Mills  v.   Brookline,  127   Mass.  Cas.  330;  Nichols  z/.  Marsland,  L.   R.  10 
69.  Exch.   255;    Quinn  v.   Chicago,   B.   &  Q. 

2  See  also  ^Etna  Mills  v.  Waltham,  126  Ry.   Co.,  63  Iowa    510   [1884].     See   also 
Mass.  422;  Bailey  v.  Woburn,  126  Mass.  Show    v.    Whitehead,    27    Ch.    Div.    588; 
416;  Wilson  v.  New   Bedford,  108  Mass.  Humphries  v.  Cousdns,  2  C.  P.  Div.  239. 
261    [1871];   Heacock   v.  State  (N.Y.),  n  «  Ulmer  v.   Farnsworth  (Me.),   15    Atl. 
N.  E.  Rep.  638  [1887] ;  Smith  v.  Brooklyn,  Rep.  65  [1888]. 

46  N.Y.  Supp.  141.  7  Hurdman  v.   N.    E.   R.  Co.,  3  C.   P. 

3  Cowdrey  v.  Woburn,  136  Mass.  409.          Div.    168.     See  also  Broder  v.  Saillard,  2 
*  Wilson    v.   New    Bedford,   108    Mass.       Ch.  Div.  692. 

261  [1871].  8  Thomas  v.  Concordia  Cannery  Co., 

6  Rylands   v.   Fletcher,   L.   R.  3    H.  L.       68  Mo.  App.  350. 


§274-  OPERATIONS   PRELIMINARY    TO    CONSTRUCTION.  iSo 

Percolating  waters  belong  to  the  owner  of  the  land  as  much  as  the  land 
itself  or  the  rocks  and  stones  in  it;  therefore  the  landowner  may  dig  a  large 
well  and  draw  up  the  water  by  machinery  or  otherwise  in  such  quantities  as  to 
supply  aqueducts  for  a  large  neighborhood.  He  may  thus  take  the  water 
which  would  otherwise  pass  with  natural  percolation  into  his  neighbor's  land, 
and  draw  off  the  water  which  may  come  by  natural  percolation  from  his 
neighbor's  land;  and  the  neighbor  may,  by  a  wall  or  other  obstruction,  retain 
the  water  which  is  upon  his  own  land  and  prevent  percolating  waters  from 
going  from  or  coming  into  the  soil.  The  owner  may  not,  however,  build 
embankments  or  raise  a  dam  or  construct  a  reservoir  so  as  to  cause  an 
unnatural  artificial  pressure  of  the  water  through  the  soil  and  by  its  action 
flood  his  neighbor's  structure  (cellar).1 

If  quantities  of  water  are  collected  in  a  sewer,  the  owner  of  the  sewer 
must  see  that  it  is  properly  constructed  and  kept  in  repair,  or  be  liable  in 
damages  for  waters  that  escape  and,  percolating  through  the  ground,  cause 
injury  to  other  property  owners,  as  by  injury  to  the  foundations  of  structures.2 
It  has  even  been  held  that  when  a  landowner  made  excavations  on  his  land 
and  let  in  the  sea,  which  undermined  and  injured  the  adjoining  land,  he  was 
held  liable  for  the  injury  to  the  well  by  the  percolating  salt  waters.3 

274.  Negligence  to  Accumulate  Waters  under  Pressure,  and  Permit  to 
Escape. — This  doctrine  of  the  law  with  regard  to  artificial  and  enforced  per- 
colations has  been  qualified,  as  in  the  case  of  pollution  by  percolating  waters, 
in  many  states  by  imposing  the  requirement  that,  in  order  to  make  the 
defendant  liable,  it  must  be  shown  that  he  has  failed  to  exercise  ordinary  care 
and  skill,  i.e.,  must  have  been  guilty  of  negligence.4 

It  has  been  held  to  be  negligence  for  one  to  collect  a  large  body  of  water 
into  a  limited  space  surrounded  with  a  porous  and  gravelly  soil  without  taking 
adequate  precautions  to  confine  it.5 

The  owner  of  a  reservoir  who  shuts  up  the  overflow-pipe,  causing  the 
water  to  overflow  and,  by  means  of  a  subterranean  channel,  run  into  the  well 
of  another,  is  guilty  of  a  trespass.6 

One  who  drills  artesian  wells  on  his  lands  and  carries  the  water  through  a 
ditch  for  irrigating  purposes,  and  allows  the  water  to  percolate  through  the 
ditch  into  his  neighbor's  land  to  his  injury,  is  liable  for  the  damages  sus- 
tained.7 The  owner  of  a  ditch  is  liable  for  damage  caused  by  seepage  oi 
water  from  it. 

1  Wilson  v.   New   Bedford,   108  Mass.  *  27    Amer.    &    Eng.    Ency.    Law   443, 

265;  Fuller  v.  Chicopee  Mfg.  Co.  (Mass.),  many   cases  cited;    semble   Reed    v.    State 

16  Gray  46.     And  see  Gorham  v.  Cross,  (N.  Y.),  15  N.  E.  Rep.  735  [1888]. 

125  Mass.  232;  But  j^cases  note  2,  p.  179.  5  Reed  v.  State,  108  N.  Y.  407;  Schuster 

*  Toledo  v.  Grasser,  12  Ohio  C.  C.  520;  v.   Albrecht  (Wis.),    73  N.   W.   Rep.   990. 

Comanche    v.     Zettlernoyer     (Tex.),    40  See  Jutte  v.  Hughes,  67  N.  Y.  267;  Mairs 

S.  W.    Rep.  641.     And  see  Cummings  v.  v.    Manh.   R.    E.   Assn.,    89    N.    Y.    506; 

Toledo,   12  Ohio  C.   C.  650;   Hitchins  v.  Clements  v.  State,  105  N.  Y.  621. 

Frostburg  (Md.),  ii  Atl.  Rep.  826  [1888].  6  Odell    v.     Nyack    Water-works     Co. 

But  see  Kennison  v.  Beverly,  146  Mass. 467.  (Sup.),  36  N.  Y.  Supp.  206. 

3  Mears  v.  Dole,  135  Mass.  508  [1883] .  7  Parker  v.  Larsen,  86  Cal.  236;  Shields 


l8l  SUBTERRANEAN  OR    UNDERGROUND    WATERS.  §2/5- 

The  doctrine  of  contributory  negligence  does  not  apply  in  case  of  injury 
to  land  from  the  escape  of  water  from  a  ditch,  the  owner  of  the  ditch  knowing 
of  the  defects  therein  and  being  able  to  prevent  the  injury.1  If  the  collec- 
tion, accumulation,  and  storage  are  in  the  first  instance  wrongful,  the 
defendant  has  been  held  liable,  although  guilty  of  no  negligence.2 

275.  Diversion  and  Obstruction  of  Underground  Currents. — A  land- 
owner may  not  divert  a  well-defined  underground  stream  of  water  which  has 
a  well-defined  known  channel.  The  landowner  is  entitled  to  take  all  the 
percolating  waters  in  his  land,  but  he  may  not  do  so  if  he  cannot  get  at  the 
underground  water  without  diverting  a  well-defined  subterranean  stream.3  A 
landowner  may  not  dig  a  well  near  to  the  banks  of  a  pond  so  as  to  create  an 
artificial  underground  current  of  water.  The  burden  of  proof  is  upon  the 
person  who  alleges  the  diversion  of  the  waters  of  the  pond,  and  he  may 
recover  damages  only  to  the  amount  which  he  is  able  to  prove.4  Authority 
to  take  and  hold  certain  waters  and  water-rights  gives  no  right  to  dig  wells 
so  as  to  intercept  percolating  waters  flowing  to,  or  to  draw  off  waters  from, 
plaintiff's  artificial  pond,  which  he  had  the  right  to  maintain,  where  the 
land  upon  which  defendant  dug  its  well  was  taken  for  a  pumping-station  and 
its  appurtenances,  and  it  did  not  thereby  appear  that  the  water  to  be  pumped 
was  to  come  from  plaintiff's  land.5 

These  cases  are  to  be  distinguished  from  those  which  have  been  treated 
hereinbefore,  as  in  the  case  where  one  digs  a  ditch  or  works  a  quarry  in 
the  vicinity  of  a  spring  and  thus  intercepts  the  underground  sources  of  said 
spring,  and  for  which  act  the  landowner  is  not  liable.6  The  distinction  to  be 
made  is  whether  the  excavations  draw  water  from  the  original  underground 
sources  by  which  the  spring  is  supplied,  or  whether  they  draw  the  water 
directly  from  the  spring  or  creek  flowing  therefrom. 

A  city  which  constructs  a  conduit  lower  than  the  surrounding  territory, 
the  soil  of  which  is  such  as  to  admit  of  ready  percolation  of  water,  with 
knowledge  that  it  will  draw  water  from  the  surrounding  territory  to  such 
conduit,  is  liable  for  damages  caused  by  the  failure  of  a  brook  and  pond  in 
such  territory  which  have  been  in  existence  for  more  than  fifty  years.7  This 
is  so  even  though  the  destruction  is  caused  by  the  diversion  of  the  water  before 
it  reaches  the  stream.8 

v.  Orr  Ex.  Ditch  Co.  (Nev.),  47  Pac.  Rep.  Rep.  574. 

194;    Schuster    v.     Albrecht    (Wis.),    73  6  Ellis  v.  Duncan  (N.  Y.),  21  Barb.  230; 

N.   W.   Rep.   990;   Reed  v.   State  (N.  Y.),  Goodale  v.  Tuttle,  29  N.  Y.  466. 

15  N.  E.  Rep.  735  [1888].  7  Smith  v.  Brooklyn,  18  App.  Div.  340, 

1  Shields   v.   Orr   Extension    Ditch  Co.  46    N.    Y.    Supp.   141,  citing    Chasemore 

(Nev.),  47  Pac.  Rep.  194.  v.  Richards,  7   H.   L.  Cas.  349;  Acton  v. 

a  Frye  v.  Moor,  53  Me.  583.  Blundell,     12     Mees.     &     W.     324,    350; 

8  Chasemore  v.  Richards,  7  H.  L.  Cas.  Wheatley  v.  Baugh,  25   Pa.  528;  Frazicr 

349;    McClellan   v.   Hurdle,   3  Col.   App.  v.  Brown,  12  Ohio  294;  Bassett  v.  Salis- 

430;  Gd.    June.    C.   Co.  v.  Shugar,  L.  R.  bury  Mfg.   Co.,  43  N.   H.^9:  Swett  v. 

6  Ch  487.  Cutts,  50  N.  H.  445. 

4  Emporia  v.  Soden,  25  Kan.  588.  8  Smith  v.  Brooklyn,  18  App.  Div.  340. 

5  Hollingsworth     &     V.     Co.     v.    Fox-  But    see    Dickinson    v.    Grand    Junction 
borough  W.    S.    Dist.   (Mass.),  42  N.   E.  Canal  Co.,  7  Exch.  282. 


CHAPTER  XV. 

OIL  AND  GAS.    OWNERSHIP,  AND  APPROPRIATION  OF  OIL  AND 

GAS. 

281.  Oil   and   Gas  Compared  to   Percolating  Water. — The  author  has 
given  a  good  deal  of  space  and  attention  to  the  subject  of  underground  waters 
for  the  reason  that  the  law  as  set  forth  in  those  sections  devoted  to  percolat- 
ing water  applies  almost  without  qualification  to  oil  and  gas.      In  the  eyes  of 
the  law  oil,  gas,  and  water  are  minerals,  and  while  in  place  are  part  of  the 
land  itself.    They  belong  to  the  owner  of  the  land,  and  are  a  part  of  it  so  long 
as  they  are  on  or  in  it  and  are  under  his  control ;  but  when  they  escape  and 
go  on  to  another's  land  or  come  under  another's  control  the  title  of  the 
former  owner  is  gone.1 

Whether  they  percolate  through  the  rock  or  exist  in  pools  or  deposits, 
they  form  a  part  of  that  tract  of  real  estate  in  which  they  tarry  for  the  time 
being;  and  when  they  leave  one  tract  and  enter  another,  they  become  a  part 
of  the  realty  of  the  latter.2 

What  has  been  said  of  percolating  waters  can  be  applied  in  every  case 
where  the  subject  of  ownership  of  oil  and  gas  is  at  issue;  and  what  has  been 
said  in  regard  to  the  polluting  of  waters  would  doubtless  apply  with  equal 
force  to  oil  or  gas,  the  only  difference  probably  being  that  the  damages 
suffered  would  be  far  less  in  the  case  of  oil  and  gas,  the  natural  purity  not 
being  so  essential  as  in  the  case  of  water. 

282.  Nature  and  Character  of,  Natural  Gas. — In  connection  with  other 
carbonaceous  deposits,   such    as  coal  and    petroleum,   there  is  often   found 
inflammable  gas.     When  these  gases  escape  by  means  of  fissures  or  seams,  or 
pipes  sunk  into  the  earth,  they  may  be  collected  and  burned  for  heating  or 
illuminating  purposes,  and  are  designated  by  the  term  "  natural  gas."     This 
gas   is   a  mineral,   and    is    subject  to   the  same  laws  that  govern    ordinary 
minerals,  with  such  qualifications  as  are  necessary  by  reason  of  its  nature  and 
physical   properties.      It  is  governed  by  rules  analogous  to  those  governing 
water  percolating  beneath  the  surface.     Water,  oil,  and  gas  are  sometimes 

1  Westmoreland  &  C.  Nat.  Gas  Co.   v.       55  Pa.  St.  164. 

DeWitt,  130  Pa.   St.  235;  Keir  v.   Peter-  2  Kelley  v.   Ohio  Oil  Co.,  57  Ohio  St. 

son,  41   Pa.    St.  362;  Brown  v.  Vander-       317  [1897], 
grift,  80  Pa.    St.   147;  Dark  v.  Johnson, 

182 


1 83     OWNERSHIP,  AND   APPROPRIATION  OF  OIL  AND    GAS.     §  283. 

placed  in  a  class  by  themselves,  and  have  been  denominated  as  minerals/mz 
natures. l 

Natural  gas  is  not  subject  to  absolute  ownership.  Like  percolating  water, 
it  belongs  to  the  owner  of  the  land  and  forms  a  part  of  it  so  long  as  it  is  in 
the  land  and  subject  to  his  control;  but  when  it  escapes  and  goes  into  other 
land  or  comes  under  the  control  of  another,  the  title  changes.  Possession  of 
the  land  is  not  necessarily  possession  of  the  gas.  If  an  adjoining  owner  drill 
a  well  and  draw  from  his  neighbor's  land  the  gas  so  that  it  comes  under  his 
control,  it  is  no  longer  his  neighbor's,  but  belongs  to  him. 

The  owner  of  land  which  contains  oil  or  gas  has  the  same  rights  and  may 
employ  the  same  methods  to  obtain  control  of  such  oil  or  gas  as  permeates 
his  soil,  or  to  induce  it  to  flow  therein  from  the  langl  of  his  neighbor  as  he 
has  in  percolating  water.  The  courts  have  refused  to  enjoin  the  landowner 
from  permitting  gas  to  escape  on  his  premises  and  go  to  waste  where  no  other 
injury  is  done  or  shown  than  the  depletion  of  the  gas-basin  in  which  the  land 
of  the  parties  is  situated.2  The  drilling  of  wells  by  each  owner  of  adjoining 
oil  lands  along  the  division-line,  so  that  each  may  obtain  the  amount  of  oil 
contained  in  his  lands,  affords  ample  remedy  to  prevent  one  operator  from 
obtaining  more  than  his  share  of  oil.3 

283.  Gas  and  Oil  in  Grants  of  Mineral  Rights. — Oil  and  gas,  being 
minerals,  form  part  of  the  land  when  in  place,  and  are  a  part  of  the  realty. 
Whenever  a  conveyance  is  made  of  them  it  is  in  effect  a  grant  of  a  part  of  the 
corpus  of  the  estate,  and  it  should  be  effected  in  the  same  manner  and  by  the 
same  ceremonies  as  real  property  is  conveyed.4 

Petroleum,  rock,  or  carbon  oil  has  been  held  not  to  include  natural  gas,* 
and  whether  or  not  the  words  "other  valuable  volatile  substances"  includes 
natural  gas  is  a  question  for  the  jury,  as  the  words  have  no  well-defined 

meaning.6 

A  conveyance  of  "  mines  and  minerals"  does  not  embrace  everything  in 
the  mineral  kingdom  as  distinguished  from  what  belongs  to  the  animal  and 
vegetable  kingdoms.7  Petroleum  is  so  much  a  mineral  in  character  that  the 
lands  from  which  it  is  obtained  have  been  held  to  be  mining  lands  under  an 
act  of  the  state  of  Pennsylvania.8  It  is  a  mineral  product  within  the  revenue 
law.9  Yet  the  ordinary  meaning  of  the  word  "  mineral  "  may  overcome  the 
technical  meaning  when  it  is  the  evident  intention  of  the  parties  not  to  include 
petroleum  in  a  reservation  of  the  minerals  in  a  deed.10 

1  16  Amer.  &  Eng.  Ency.  Law  221.  925,  6  All.  Rep.  74  [1886]. 

2  Hague  v.  Wheeler,    157  Pa.   St.   524.  6  Ford  v.  Buchanan,  in  Pa.  St.  31. 

27  Atl.  Rep.  714.  7  Hartwell  v.  Camman,    10  N.   J.    Eq. 

3  Kelly  v.  Ohio  Oil  Co.,   57   Ohio   St.       128. 

3I-  8Gill  v.  Weston,  no  Pa.  St.  313. 

'Stoughton's  Appeal,  88  Pa.  St.   198;  9  Thompson    v.    Noble,     Pittsb.    (Pa.) 

Barker  v.  Dale,  3  Pittsb.  (Pa.)  190.     But  201:  u  Min.  Rep    137.      . 
see  Willetts  v.   Brown  (N.   Y.),   42  Hun  10  Dunham  v.  Kirkpatnck,  101   Pa.  St. 

140.  43- 

5Truby  v.   Palmer  (Pa.),  4  Cent.   Rep. 


§284.  OPERATIONS   PRELIMINARY    TO    CONSTRUCTION.  184 

From  the  nature  of  gas  and  gas  operations,  the  grant  of  gas-well  rights  is 
necessarily  exclusive.  A  lease  of  the  land  for  the  express  and  sole  purpose  of 
mining  and  taking  carbon  oil  therefrom  at  a  fixed  royalty  has  been  held  to 
permit  the  tenant  to  appropriate  the  gas  which  escaped  from  the  oil-well  by 
its  own  force.  The  court  argued  that,  as  it  was  necessary  to  keep  ,the  well 
open  in  order  to  obtain  the  oil,  and  as  the  gas  escaped  of  its  own  natural 
force  into  the  air,  the  tenant  was  entitled  to  control  and  appropriate  the  gas, 
though  he  would  not  be  permitted  probably  to  pump  it  if  it  required  to  be 
pumped.1 

Natural  gas  has  been  held  not  to  be  "  heat,"  nor  can  a  company  incor- 
porated to  supply  "  heat  "  furnish  natural  gas.2  It  is  a  fuel,3  and  as  much  an 
article  of  commerce  as  iron  ore,  coal,  petroleum,  or  any  other  of  the  like 
products  of  the  earth.  A  statute  forbidding  its  transportation  from  the  state 
is  void,  for  it  is  in  conflict  with  the  Constitution  of  the  United  States,  which 
provides  that  the  regulation  of  interstate  commerce  shall  be  in  Congress.4 

In  an  insurance  policy  which  excepted  "loss  or  damage  by  explosion,  • 
except  from  explosion  by  gas, "  the  word  was  held  not  to  include  an  inflam- 
mable and   explosive  vapor  evolved   in   the  process  of  extracting  oil   from 
shoddy.5 

A  grant  to  sink  test-wells  for  oil  and  to  take  all  oil  raised,  reserving  one- 
third  to  the  grantor,  with  a  condition  that  if  operations  were  abandoned  all 
property  rights  should  revert  to  the  grantor,  was  held  to  create  an  incorporeal 
hereditament — a  profit  a  prendre.6 

284.  Rights  Incident  to  the  Operation  of  Gas-  and  Oil-wells. — An  inter- 
esting case  of  trespass  and  the  matter  of  rights  of  way  arose  in  the  case  where 
the  owners  of  a  coal-mine  sought  to  enjoin  the  owners  of  the  surface  of  the 
ground  from  boring  a  gas-well  through  their  strata  of  coal,  on  the  ground 
that  it  was  a  trespass  attended  with  great  dangers  to  the  lives  of  the  miners 
and  the  property  of  the  mine-owners,  and  the  fact  that  the  gas  could  not  be 
controlled.  At  first  the  court  denied  the  injunction  upon  the  ground  that 
the  act  of  the  surface  owner  would  be  a  mere  trespass  for  which  an  adequate 
remedy  was  offered  in  an  action  at  law.  On  the  following  day  the  court 
reversed  its  former  ruling,  placed  its  decision  principally  upon  the  probable 
danger  of  driving  a  gas-well  through  a  mine,  although  it  was  the  court's 
opinion  that  it  would  be  some  day  possible  to  dig  such  a  well  in  such  a  place. 
The  court  also  held  that  the  surface  owner  had  no  right  of  way  of  necessity 
through  the  vein  of  coal  to  his  land  beneath  it,  a  reservation  of  such  a  way 
not  having  been  made.7 

1  Wood  Co.  Pet.  Co.  v.  West  Va.  Trans.       Philadelphia  Co.,  118  Pa.  St.  468. 

Co.,  28  West  Va.  210.  5  Stanley  v.  Weston  Ins.   Co.,   L.  R.   3 

2  Emerson  v.  Com.,  108  Pa.  St.  126.  Ex.  71. 

'Citizens    Gas,    etc.,    Min.   Co.    v.    El-  6  Funk  v.  Haldeman,  53  Pa.  St.  243. 

wood,  114  Ind.  338.  7  Jefferson  I.  Wks.  v.  Gill  Bros.,  14  W. 

4State    v.    Indiana,    etc.,    Gas,    Oil    &  L.  Bull.  2.     And  see  30  Cent.   Law  Jour. 

Min.    Co.,    120  Ind.    579;    Carothers    v.  503.     In    the  matter  cf  horizontal  divi- 


1 85     OWNERSHIP,  AND    APPROPRIATION  OF  OIL   AND    GAS.     §  286. 

A  later  case  in  the  United  States  courts  held  that  the  drilling  of  an  oil-  or 
gas-well  through  a  part  of  a  coal-mine  from  which  all  the  coal  has  been 
extracted  except  what  is  necessary  for  the  props  does  not  by  its  mere  physical 
damage  to  the  mine,  or  its  effect  as  an  obstruction,  threaten  such  an  injury 
to  one  owning  the  coal  and  the  right  to  mine  it  as  will  warrant  the  issuance 
of  a  preliminary  injunction;  nor  will  an  injunction  issue  to  restrain  interfer- 
ence with  certain  deep-lying  veins,  where  on  the  affidavits  it  appears  doubtful 
whether  those  veins  extend  under  the  tract.1 

The  owner  of  mineral  land  has  a  right  to  take  away  the  whole  of  the 
minerals  in  his  land,  for  such  is  the  natural  course  of  the  user  of  such  land, 
and  if,  in  the  course  of  such  user,  water  accumulates  on  his  land,  either  on 
the  surface  or  under  ground,  and  then  passes  off,  by  the  operation  of  the  laws 
of  nature,  into  the  ground  of  his  neighbor,  his  neighbor  has  no  legal  cause 
of  complaint;  but  where  one  of  the  two  adjoining  mine-owners  conducts 
into  his  neighbor's  mine  water  which  would  not  otherwise  go  there,  or  ca"uses 
it  to  go  there  at  different  times  and  in  greater  quantities  than  it  would  go 
there  naturally,  he  commits  a  legal  wrong.2 

If  a  contractor  undertake  to  drill  a  gas-well  to  a  certain  depth  and  of  a 
certain  size,  he  must  comply  literally  with  the  contract  even  though  no  gas 
was  found,  and  even  though  a  well  of  smaller  size  is  just  as  effective  in  deter- 
mining that  no  gas  is  to  be  found  at  that  depth.3 

When  a  company  has  leased  and  is  using  natural-gas  wells,  it  may  not  be 
interfered  with  by  the  lessor  if  such  interference  is  likely  to  result  in  irrepa- 
rable injury,  and  the  lessee  may  have  an  injunction  to  prevent  such  interfer- 
ence.4 

It  has  been  held  contributory  negligence  to  carry  a  lighted  lantern  near 
an  oil-well  where  the  escaping  gas  could  be  smelled  and  heard.5 

285.  Gas  Companies,  their  Incorporation,  Organization,  and  Control,— 
Gas  companies  are  subject  to  the  same  control  and  restraint  generally  as  are 
water  companies.      They  are  quasi-public  institutions  and  derive  the  power  to 
occupy   streets,  to  furnish   gas  to  the   public,    and  to   exercise  other  special 
privileges,  from  the  legislature  either  directly  or  through  the  municipal  cor- 
poration.   By  reason  of  such  concessions  the  companies  must  serve  the  public 
without  discrimination,  and  must  adopt  reasonable  rules  and  regulations.     In 
fact  what  has  been  said  of  water  companies  will  apply  almost  without  quali- 
fication to  gas  companies. 

286,  Ownership  of  Minerals  and  Metals  in  Land.— The  laws  pertaining 
to  the  baser  metals  and  minerals  are  based  upon  the  common  law  that  applies 

sions  land,  see  I  Amer.  Law  Reg.  (N.  S.)  St.  19.  And  see  30  Cent.  Law  Jour.  503. 

577  [1862!,  and  cases  cited.  *  Citizens'  Nat.  Gas.  Co.  v.  Shenango 

'Rend  v.  Venture  Oil  Co.  (Cir.  Ct.).  Nat.  Gas  Co.  (Pa.),  20  All.  Rep.  947 

48  Fed.  Rep.  248.  [iSqo]. 

2  Lord  v.  Carbon  Mfg.  Co.,  42  N.  J.  5McClafferty  v.  Fisher  (Pa.),  2  All. 

Eq.  157  [1886],  Rep.  610  [1885]. 

3Gillespie  Tool  Co.  v.  Wilson,  123  Pa. 


§286.          OPERATIONS  PRELIMINARY   TO   CONSTRUCTION.  l86 

o  property  in  land.  They  comprise  the  mining  of  coal,  iron,  and  other  ores, 
clay,  sulphates,  and  phosphates,  and  the  quarrying  of  stone  whether  for  build- 
ing or  manufacturing  purposes.  These  belong  strictly  to  the  owner  of  the 
land  unless  they  have  been  separated  and  granted  away  by  the  owner  or  his 
grantors.  His  rights  in  them  will  be  protected  by  the  courts,  and  if  the  acts 
complained  of  are  irremediable  and  destroy  the  substance  of  the  property, 
as  in  the  case  of  extracting  ores,  an  injunction  will  issue  in  order  that  the 
property  may  be  preserved  from  destruction  during  such  time  as  may  be 
necessary  to  try  the  title  at  law.1 

The  laws  pertaining  to  the  mining  of  precious  metals  in  the  western  states 
and  territories,  and  in  fact  the  laws  which  determine  the  property  in  the 
precious  metals  themselves,  are  largely  based  upon  the  custom  among  the 
miners,  and  which  prevailed  at  the  mining  camps  before  any  government  or 
courts  had  been  established.  They  do  not  generally  depend  upon  the  common 
law,  and  are  matters  for  local  study. 

The  subject  of  mining  is  too  broad  to  treat  within  the  limits  of  this  book. 
There  are  excellent  works  upon  the  subject,  and  the  reader  is  referred  to 
them. 

1  Buskirk  v.  King  (C.  C.  A.),  72  Fed.  Rep.  22. 


CHAPTER  XVI. 

ELECTRICITY.    PROPERTY  RIGHTS   AFFECTED  BY  THE  USE  AND 
DISCHARGE   OF    ELECTRICITY. 

291.  Properties  and  Character  of  Electricity. — Electricity  is  not  a  fluid 
as  is  popularly  supposed.     It  is  a  phenomenon  attended  by  certain  disturb- 
ances, when  it  acquires  a  certain  intensity,  which  are  known  by  the  effects 
upon  material  substances,  and  is  apparent  to  the  senses  by  the  shock  it  causes 
to  the  human  system,  or  by  the  work  performed.     In  discussing  electricity 
and  the  various  phenomena  attending  it,  it  is  very  convenient  to  speak  of  it 
as  a  fluid  and  as  being  under  a  certain  pressure  (potential),  designated  by 
volts,  instead  of  pounds  per  square  inch;  and*  as  being  a  certain  measured 
quantity  (amperage),  designated  by  the  number  of  amperes  instead  of  by  the 
number  of  cubic  feet  or  gallons.      Electricity,  when  confined  and  transmitted 
over  or  through  well-defined  channels,  partakes  very  much  of  the  character  of 
a  fluid,  and  it  is  convenient  to  designate  it  as  such  and  speak  of  it  as  such 
even  in  scientific  and  industrial  circles  where  practical  applications  of  it  are 
made. 

Electricity,  however,  is  not  a  fluid  nor  a  substance  which  can  be  handled 
in  the  sense  that  a  material  object  or  substance  is  handled.  It  is  a  vibratory 
condition  of  a  material  substance,  and  is  not  confined  to  any  particular  sub- 
stances only  to  the  extent  that  the  electrical  condition  varies  in  different  sub- 
stances under  the  same  circumstances  and  conditions,  its  effect  being  usually 
greatest  in  the  metals  and  mineral  substances.  The  earth,  being  largely  com- 
posed of  metallic  and  mineral  substances,  is  therefore  readily  affected  by 
electricity,  and  assumes  an  electrical  condition  the  degree  of  which  will  some- 
what depend  upon  the  metallic  substances,  naturally  inherent  to  the  earth  or 
ground,  or  placed  therein  by  artificial  means. 

292,  Electricity  Compared  with  Heat,  Light,  Sound,  and  Other  Vibratory 
Conditions, — Electricity  is  as  much  a    condition    pervading   the  receptacle, 
holder,  or  conductor  which  contains  or  conveys  it  as  are  the  phenomena  of 
sound,  light,  or  heat  when  they  are  transmitted  through  the  air  or  water  or 
when  they  (as  heat   often   does)  pervade  the  earth.      Very  much  the  same 
condition  exists  when  an  object  is  charged  with  electricity  as  would  prevail  if 
it  were  heated  to  a  high  temperature;  the  intensity  of  the  heat  corresponding 
to  the  potential  of  the  electricity.      Except  that  electricity  travels  with  more 
facility  and  in  more  direct  paths,  it  is  quite  as  correct  to  speak  of  the  "flow 

187 


§292.          OPERATIONS  PRELIMINARY   TO   CONSTRUCTION.  1 88 

of  heat,"  or  the  "  current  of  heat,"  or  the  "  heat  fluid,"  so  far  as  it  implies 
a  material  substance  called  heat,  as  it  is  to  apply  the  same  words  and  phrases 
in  connection  with  electricity.  Electricity,  like  heat,  is  merely  a  vibratory  con- 
dition of  a  substance,  which  has  the  power  of  communicating  its  phenomena 
to  other  material  substances  brought  in  contact  with,  or  in  its  vicinity  and 
within  its  sphere  of  susceptible  influence.  When,  therefore,  a  person  or  a 
large  power,  lighting,  or  transportation  company  changes  or  intensifies  the 
electrical  condition  of  a  neighbor's  land  or  structures,  it  is  much  the  same 
disturbed  condition  that  would  prevail  if  the  temperature  of  such  land  and 
structures  had  been  greatly  increased,  or  if  intense  light  or  an  unbearable 
noise  had  been  created.  If  the  public  at  large  suffer,  such  conditions  may  be 
abated  as  public  nuisances,  as  would  be  the  case  with  light,  noise,  or  heat; 
and  if  an  individual  suffer  in  the  enjoyment  of  his  estate,  he  may  enjoin  the 
operation  of  such  plants  as  cause  the  disturbed  condition,  or  he  may  recover  in 
an  action  for  damages. 

The  phenomena  of  electricity,  being  more  intense  and  violent,  and  per- 
vading freely  almost  all  substances,  are  more  far-reaching  and  violent  in  their 
effects;  and  by  reason  of  the  tendency  of  electricity  to  seek  an  avenue  of  least 
resistance,  its  effects  are  more  limited  to  such  paths.  Therefore  only  those 
neighbors  suffer  whose  land  or  structures  lie  in  such  path.  Such  an  electrical 
condition,  therefore,  more  often  creates  a  private  nuisance,  so  called,  and  is 
more  likely  to  present  a  case  for  an  action  for  damages  than  one  for  an  in- 
junction, and  more  frequently  a  nuisance  by  omission  than  one  by  commission. 

When  one  acquires  land  with  certain  deposits  or  structures  or  vegetable 
growths  which  are  a  part  thereof,  he  acquires  the  right  to  hold,  own,  and 
enjoy  the  land  in  the  condition  in  which  he  purchased  it,  and  any  one  who 
changes  or  destroys  that  condition  is  liable  for  the  injuries  which  the  land- 
owner may  suffer  in  consequence.  Land  contains  mineral  substances  which 
may  constitute  the  soil  thereof  as  the  substrata  of  clay,  sand,  gravel,  rocks, 
etc.,  as  the  case  may  be;  and  in  addition  thereto  valuable  minerals,  such  as 
coal,  precious  metals,  gems,  water,  oil,  and  gas.  It  also  possesses  the 
phenomena  of  gravitation,  of  warmth,  and  of  electricity,  conditions  which 
are  and  always  will  be  inherent  therein.  This  electrical  condition  may 
change  and  vary  from  causes  but  little  understood  or  not  fully  accounted  for. 

If  it  were  within  the  power  of  a  neighbor  to  destroy  the  attraction  of 
gravitation  inherent  to  one's  land,  there  would  be  but  little  doubt  that  the 
landowner  would,  by  the  laws  of  our  country,  have  a  right  to  damages  for  the 
injuries  caused;  and  for  the  same  reasons  a  landowner  should  be  indemnified 
for  any  damages  that  he  suffers  in  consequence  of  a  change  in  the  electrical 
condition  of  his  land  by  known  and  determined  causes  created  by  another. 

Electricity  in  its  ordinary  state  is  not  appreciable  to  the  five  senses.  It 
is  only  when  it  is  collected  and  stored  under  pressure  (potential)  and  then 
suddenly  discharged  that  it  is  capable  of  creating  mischief  or  of  being  used 
in  any  of  the  industrial  applications.  It  is  true  that  when  the  potential  of 


189  PROPERTY  RIGHTS  AFFECTED    BY  ELECTRICITY.         §293. 

the  clouds  becomes  much  greater  or  much  less  than  that  of  the  earth,  violent 
discharges  attend  in  nature,  as  in  the  well-known  phenomena  of  lightning 
and  thunder;  but  these  are  not  within  the  control  of  man,  and  their  treat- 
ment need  not  be  pursued  here.  It  is  believed  that  in  every  instance  where 
electricity  is  capable  of  doing  harm  or  of  causing  material  damage,  it  is 
where  it  has  been  confined  or  accumulated  in  large  quantities  under  pressure 
(potential)  and  then  allowed  to  escape  in  such  a  manner  as  to  create  violent 
disturbances.  When  it  has  been  accumulated  and  discharged  in  such  a 
manner,  and  the  parties  who  have  caused  the  injuries  can  be  determined,  they 
should  be  liable  for  the  consequence  resulting  from  its  effects.1 

The  possibilities  of  the  manifold  industrial  and  commercial  uses  to  which 
electricity  may  eventually  be  adapted,  and  which  are  even  now  foreshadowed 
by  the  achievements  of  science,  are  so  great  as  to  make  the  courts  hesitate  in 
declaring  the  exact  liability  from  electrical  disturbances.  Responsibility 
cannot  be  diminished  or  avoided  because  the  actor  has  aided  in  the  accom- 
plishment of  the  result  of  a  natural  law.  The  person  injured  has  a  right  to 
object  to  the  projection  upon  his  premises,  by  unnatural  and  artificial  causes, 
of  an  electric  current  in  such  a  manner  and  with  such  intensity  as  to 
materially  injure  its  property. 

It  cannot  be  questioned  that  one  has  the  right  to  accumulate  water  upon 
his  own  property  and  use  it  for  a  motive  power;  but  he  cannot  discharge  it 
there  in  such  quantities  that,  by  the  action  of  physical  forces,  it  will  inun- 
date his  neighbor's  land  and  destroy  his  property,  and  shield  himself  from 
liability  by  the  plea  that  it  was  not  his  act,  but  an  inexorable  law  of  nature, 
that  caused  the  damage.  If  a  subtle  and  imperceptible  electric  fluid  be  col- 
lected for  pleasure  or  profit,  the  same  duty  is  exacted  of  the  owner  who 
collects  and  stores  it  as  is  required  of  one  who  accumulates  water,  air,  or  gas 
under  high  pressure,  namely,  that  of  providing  an  artificial  reservoir  or  conduit 
to  safely  store  or  transmit  the  artificial  product  and  to  prevent  injury  to 
others. 2 

293.  Injuries  Result  from  Escaping  or  Induced  Electric  Currents. — The 
injuries  which  result  from  the  use  of  electricity  are  those  which  arise  from  the 
escape  of  the  electricity  or  from  the  currents  induced  by  the  current  in  other 
conductors.  These  escaped  or  induced  currents  cause  disturbances  to  other 
electrical  instruments  or  apparatus  owned  or  controlled  by  landowners  or  by 
other  companies;  or  they  may  cause  the  disintegration  and  gradual  destruc. 
tton  of  lines  of  pipes  or  structures  which  they  traverse,  by  the  phenomenon 
known  as  electrolysis;  or  they  may  render  structures  or  things  which  become 
the  path  of  such  currents  dangerous  to  animals  that  come  in  contact 
with  them. 

1Watervliet  Tpk.  &  R.  Co.  v.  Hudson  186  [1893]. 

Riv.  Teleph.  Co.,  61  Hun  141  [1891],  135  2  Hudson  Riv.  Teleph.   Co.   v.  Water- 

N.  Y.  393  [1892],  Fletcher  v.  Rylanders,  vliet  Tpk.  &  W.  Co.,  135  N.  Y.  409,  410; 

L.   R.    i  Ex.  265,   3  H.   L.   330; 'National  Keasbey  on  Electric  Wires  243. 
Bell  Teleph.  Co.  v.  Baker  (Eng.),  2  Ch. 


§2Q3-  OPERATIONS  PRELIMINARY    TO    CONSTRUCTION.  I9O 

The  escaping  of  currents  is  usually  caused  by  virtual  contact  between  the 
conductor  of  the  current  and  some  other  line  or  structure  which  is  of  metal 
and  which  forms  a  good  conductor  for  the  escaping  current.  A  high  current 
of  electricity  will  select  that  route  or  pathway  of  return  to  the  source  where 
it  is  generated  that  requires  the  least  energy,  which  will  be  the  shortest  and 
quickest  and  at  the  same  time  the  path  of  least  resistance.  Therefore, 
•currents  frequently  escape  from  the  conductors  which  are  intended  to  carry 
them,  and  lines  of  pipe  or  continuous  structures  become  surcharged  with 
electricity  so  as  to  render  them  dangerous,  or  disintegrate  the  line  or  structure 
itself  over  which  they  travel,  if  the  connection  be  not  such  as  to  afford  a  short 
and  easy  pathway  for  the  electricity.  Thus  an  electric-light  wire  may  come 
in  contact  with  a  telephone  wire  and  ca,use  injury  to  the  instruments  upon 
the  telephone  line  and  destroy  its  use  as  a  telephone  line,  or  even  render  it 
•dangerous  to  those  who  may  attempt  to  operate  it.  Currents  of  electricity 
generated  by  electric-railway  and  electric-light  companies  who  utilize  the 
ground  for  the  return  to  the  generator,  often  travel  over  lines  of  gas-  or  water- 
pipes  or  a  metal  structure,  instead  of  returning  by  the  most  direct  pathway 
through  the  earth,  the  metal  pipe  of  the  pipe- lines  or  the  steel  frames  of  the 
structures  affording  a  better  conductor  for  the  currents  than  do  the  mineral 
substances  of  the  earth.  Where  the  current  leaves  the  surface  of  the  metal, 
as  in  a  damp  place  underground,  chemical  action  called  "electrolysis"  fre- 
quently takes  place  which  causes  the  slow  corrosion  of  the  metal,  which  in 
the  course  of  time  produces  serious  injury  to  the  pipes  or  to  the  structure.1 
In  order  to  cause  electrolysis  or  the  burning  out  and  destruction  of  tele- 
phones, the  current  must  have  escaped  from  the  primary  conductor,  and  in 
large  quantities,  at  high  potential. 

A  current  may  be  induced  in  a  line  of  metal  pipes  or  rails,  or  in  telephone 
or  telegraph  lines,  by  other  currents  passing  in  close  proximity.  It  is  a  well- 
known  phenomenon  of  electricity  that  whenever  a  current  is  passing  near 
to  another  conductor  a  similar  current  will  be  induced  in  the  opposite  direc- 
tion in  the  second  conductor,  so  that  if  two  lines  of  wire  are  running  close 
together,  a  current  in  one  wire  will  induce  an  exact  counter-current  of  less 
intensity  in  the  other  wire,  and  if  a  telegraph  message  or  even  a  telephone 
message  is  being  sent  over  one  wire,  the  same  pulsations  and  breaks  will  be 
created  in  the  second  wire,  and  the  conversation  going  on  in  the  first  wire 
may  often  be  distinctly  heard  in  the  telephones  connected  with  the  second 
wire;  and  if  a  dynamic  current  be  passing  over  the  first  wire,  its  pulsations  will 
make  such  a  buzzing  sound  in  the  telephones  connected  with  the  second  wire 
as  to  entirely  drown  the  sounds  of  the  voice.  A  telephone  requires  a  delicate 
pulsating  current,  and  an  alternating  or  discontinuous  current  passing  in  a 
wire  alongside  of  a  telephone  will  frequently  utterly  destroy  its  use  for  pur- 

1For  the  principal  case  on  electrolysis       and    Prospect  Hts.   Ry.  (Illinois  courts) 
see  Case  Gold  on  behalf  of  Peoria  Water       [1900],  not  yet  reported. 
Company  v.  Central  Railway  and  Peoria 


PROPERTY  RIGHTS  AFFECTED   BY  ELECTRICITY.         §  294. 

poses  of  telephoning.  If  both  the  dynamic  current  wire  and  the  telephone 
wire  are  connected  with  the  earth  and  depend  upon  it  for  return  to  the  gener- 
ators or  battery,  the  disturbance  will  be  even  greater,  rendering  the  more  deli- 
cate operation  of  telephoning  quite  impossible. 

The  uses  of  these  currents  of  different  characters  and  potentials  in 
proximity  with  one  another,  and  for  the  several  purposes  for  which  electricity 
is  employed,  are  what  give  rise  to  the  suits  and  actions  for  electrical  disturb- 
ances. Much  of  the  trouble  and  difficulty  can  be  avoided  if  one  or  the  other 
of  the  parties  suffering  adopt  or  use  a  metallic  circuit  for  return  to  the  battery 
or  generator,  instead  of  using  the  earth  for  a  return ;  and  if  the  currents  of 
varying  intensities  be  kept  at  respectable  distances  from  one  another.  The 
electric-light  companies  usually  employ  the  metallic  return  circuit,  which  re- 
duces largely  the  interference  with  their  electrical  operations.  In  electric  rail- 
ways the  rails  of  the  track  are  generally  used  for  a  return  circuit.  Not  being 
insulated,  more  or  less  of  the  current  escapes  from  the  track.  This  is  obviated 
in  a  large  degree  by  connecting  each  rail  with  the  succeeding  rail  by  a  wire 
called  a  bond,  and  by  placing  a  return  copper  wire  in  the  ground  between 
and  connected  to  the  rails,  upon  which  wire  the  current  returns  to  the  genera- 
tor. The  double  trolley  system,  which  consists  of  a  direct  and  a  return  metallic 
circuit  insulated  from  the  ground,  is  the  safest  and  best,  but  it  is  so  expensive 
to  build  and  complicated  to  operate  that  it  has  not  been  generally  adopted. 

294.  Electrical  Litigation  is  Between  Owners  of  Franchises  and  Not 
Landowners, — Almost  all  the  litigation  over  disturbances  by  electricity  has 
been  between  those  companies  or  persons  using  high  potential  electricity  and 
those  using  low  potential  electricity;  such  are  electric-light  companies  and 
trolley  lines  of  the  former  class,  and  telegraph  and  telephone  companies  of  the 
latter  class.  As  these  companies  are  usually  corporations  which  are  not  land- 
owners, but  which  possess  franchises  or  privileges  granted  by  the  government 
to  occupy  the  public  ways  of  the  country  or  the  streets  of  villages  and  cities, 
the  cases  where  landowners'  rights  have  been  interfered  with  by  electric 
companies  are  very  few. 

In  the  case  of  companies  holding  franchises  the  question  of  priority  of 
occupation  of  the  road  or  street  has  an  important  bearing  upon  the  rights  of 
the  parties;  also  the  question  as  to  which  use  of  the  streets  or  roads  is  a  use 
incident  to  travel  and  therefore  incident  to  the  proper  use  of  the  way,  it  being 
frequently  held  that  an  electric -trolley  line  or  an  electric-light  line  is  such  a 
use,  and  that  telegraph  and  telephone  lines,  not  being  incidental  to  street 
purposes,  have  not  the  same  rights  and  privileges  that  an  electric  light  or 
trolley  line  has.  The  determination  of  such  rights,  therefore,  is  not  based  or 
dependent  upon  the  ownership  of  land,  nor  are  the  rights  to  be  determined 
dependent  upon  or  incident  to  the  ownership  of  land.  Being  incidental  to 
the  right  of  way,  they  are  treated  in  a  later  part  of  the  book,  so  far  as  they 
affect  easements  of  rights  of  way,  telegraph,  and  telephone  lines  in  public  ways.* 
*  See  Sees.  798,  799,  and  827-832,  infra. 


§  295-  OPERATIONS  PRELIMINARY    TO    CONSTRUCTION. 

295.  Litigation  over  Electrical  Disturbances  between  Public  Corpora- 
tions.— The  law  as  to  the  rights  of  companies  to  the  protection  of  the  courts 
from  disturbances  of  other  companies'  lines  is  by  no  means  definitely  settled. 
Telephone  and  telegraph  companies  which,  with  the  consent  of  the  authorities, 
have  spent  much  money  in  building  up  a  profitable  business  of  great  utility 
insist  that  they  are  entitled  to  protection  against  the  use  of  the  streets  by  other 
companies  for  other  and  more  powerful  currents  which  injure  their  business 
and  impair  the  value  of  their  property. 

In  the  earlier  cases  where  these  companies  had  built  their  lines  and  estab- 
lished their  business  prior  to  the  construction  and  operation  of  the  electric 
light  and  electric  railways  this  right  was  conceded,  and  it  was  generally  held 
that  the  former  companies  should  not  be  required  to  adopt  new  and  expensive 
devices  for  neutralizing  the  effects  of  the  new  currents  if  their  effects  could 
be  prevented  by  the  latter  companies  using  them  by  any  feasible  methods  and 
at  a  reasonable  cost.1* 

To  prevent  induction  in  telephone  or  telegraph  wires,  electric-light  and 
electric-railway  companies  have  been  enjoined  from  stringing  their  wires  parallel 
to  telephone  or  telegraph  wires  and  nearer  than  a  designated  number  of  feet, 
or  for  a  linear  distance  greater  than  that  designated.2  In  a  number  of  the 
cases  the  element  of  danger  from  contact  by  reason  of  having  wires  in  such 
close  proximity  entered  into  the  case,  but  to  what  extent  it  is  impossible  to 
determine.3 

While  no  person  or  company  has  an  exclusive  right  to  the  use  of  any  part 
of  a  highway,  yet  when  one  is  first  on  the  ground  by  permission  of  the  proper 
authorities  the  courts  will  protect  him  against  injurious  interference  with  his 
property  or  business  if  such  injuries  can  be  avoided.4 

In  these  cases  the  telephone  or  telegraph  companies  had  priority  in  occu- 
pying the  street  with  their  lines,  and  in  some  of  the  cases  relief  was  denied 
when  the  electric  light  or  power  companies  had  first  erected  their  lines.5 
These  earlier  cases  were  followed  by  decisions  to  the  effect  that  where  the 

Nebraska  Teleph.   Co.  v.  York  Gas  &  Elec.  Ltg.  Co.,  14  Cine.  Week.  Bull.  327, 

Elec.   Co.,  17  Neb.    284  [1889];  Western  where  an  injunction  was  refused   when 

Un.   Teleg.   Co.   v.   Guernsey,  etc.,   Co.,  the  electric-light  wires  were  parallel  and 

46   Mo.   App.    120.     But   see    Rocky   Mt.  three  or  four  feet  distant  from  telegraph 

Teleph.   Oo.   v.  Salt   Lake  City  Ry.   Co.  lines.     See  also  Bell  Teleph.  Co.  v.  Belle- 

(Utah),    3  Amer.   El.   Cas.   350,  356,    and  ville    Elec.    L.   Co.,  12  Ontario   Rep.  571 

Wisconsin  Teleph.  Co.  v.  Eau  Claire  St.  [1886]. 

Ry.  Co.,  3  Amer.  El.  Cas.  383.  3  Bell   Teleph.   Co.  v.   Belleville  Elec. 

2  Nebraska  Teleph.   Co.   v.    York  G.  &  L.  Co..  12  Ont.  Rep.  571. 

Elec.  Lt.  Co.,  17  Neb.  284,  43  N.  W.  Rep.  *  Bell  Teleph.  Co,    v.   Belleville    E.   L. 

126  [1889],  which  fixed  the  minimum  dis-  Co.,   12  Ont.    Rep.   330   [1886];    Western 

tance   apart   of    incandescent    light    and  Un.  Tel.  Co    v.   Guernsey,  etc.,  Co.,  46 

telephone    wires    at    eight    feet,    or    for  Mo.  App.  120.  But  see,  contra,  East  Tenn. 

more  than  three  hundred  linear  feet,  and  Teleph.   Co,   v.    Knoxville    St.    Ry.    Co. 

prohibited  arc  lights  from 'being  strung  (Tenn.),    3   Amer.    El.    Cas.    400    [1890]; 

parallel  on  same  side  t>f  street;  Western  Watervliet  Tpk.    &  R.   Co.    v.    Hudson 

Un.   Teleg.1  Co,  v.  Guernsey  &  Scudder  Riv.  Teleph.  Co.,  135  N.  Y.  393  [1895;]. 

Elec.  Lt.   Co.,  46   Mo.   App.   120  [1891];  5  Nebraska  Teleph.   Co.  v.   York  G.  & 

West.    Union  Teleg.    Co.    v.    Champion  E.  L.  Co.,  17  Neb.  284. 

*  See  Sees.  827-831,  infra. 


193  PROPERTY  RIGHTS   AFFECTED    BY  ELECTRICITY.         §296. 

expense  of  protecting  such  vested  rights  was  small,  if  undertaken  by  the  com- 
pany suffering  the  disturbance,  as  compared  with  what  it  would  have  cost  the 
electric  light  or  power  company  to  prevent  the  injury,  an  injunction  would 
be,  and  often  has  been,  refused,  and  the  party  suffering  left  to  an  action  for 
darriages  for  the  injuries,  the  measure  of  which  was  sometimes  held  to  be  the 
cost  of  protection. 1 

296,  Superior  Rights  in  Streets  Determined  by  Uses  Incident  to  Travel. 
— Another  element  that  has  been  a  strong  factor  in  determining  the  rights  of 
telephone  and  telegraph  companies  in  opposition  to  those  of  electric  light  and 
power  companies  is  that  the  latter  are  sometimes  held  necessary  and  primary 
uses  of  streets  for  public  travel,  while  the  former  are  not.  The  Post-road  Act 
expressly  provides  that  the  privileges  conferred  upon  a  telegraph  company 
shall  not  interfere  with  ordinary  travel.* 

In  accord  with  this  view  there  is  a  line  of  cases  that  hold  that  the  franchise 
of  a  telephone  company  to  use  the  streets  is  subservient  to  the  rights  of  the 
public  to  use  them  for  new  and  improved  modes  of  travel ;  that  a  franchise 
granted  by  the  legislature  for  such  a  purpose  confers  a  right  paramount  to  a 
telephone  or  telegraph  company;  and  that  if  the  operation  of  a  street  railway 
under  such  a  franchise  disturb  a  telephone  company's  apparatus,  the  latter 
must  meet  the  new  condition. a  Therefore  where  an  electric-light  company 
also  furnished  power  to  individuals  for  domestic  and  manufacturing  purposes, 
it  was  held  that  the  fact  that  the  electricity  was  used  in  part  for  street  pur- 
poses did  not  give  the  light  company  superior  rights  that  would  outweigh  a 
prior  occupancy  by  a  telegraph  company.3  In  another  case  in  an  inferior 
court  it  was  held  that  as  between  two  electric-lighting  companies  each  having 
permission  to  use  the  street  and  each  furnishing  light  for  business  and  domestic 
purposes,  the  company  which  had  the  contract  for  lighting  the  streets  and 
public  places  had  the  superior  right  even  though  the  other  company  were 
prior  in  time  of  occupation.4 

Injunctions  to  prevent  the  use  of  the  single-trolley  system  of  street  rail- 
ways have  frequently  been  sought,  and  have  sometimes  been  granted,5  and  at 
other  times  been  refused.6  If  a  telephone  company  be  required  to  protect 

1  Central  Un.  Teleg.  Co.  v.  Sprague  E.  Rep.  417. 

Ry.  &  M.  Co.  (Ohio  Com.  PL),  2  Amer.  3  Western  Un.    Teleg.  Co.  v.   Los  An- 

El.  Cas.    307  [1889].      Cases  cited  in  note  geles  E.  L.,  76  Fed.  Rep.  178. 

i,^.  189.  4Terre 'Haute   El.  L.  &  P.  Co.   v.  Citi- 

>2Cinc.     Inc.     Ry.    Co.     v.     City,    etc.,  zens'  El.   L.  &  P.  Co.  (Ind.  Super.  Ct.),  & 

Teleph.    Assn.,   48  Ohio   St.   390  [1891];  Amer.  El.  Cas.  193  [1895]. 

Watervliet    Tpk.    &   R.    Co.   v.    Hudson  5  East   Tenn.    Teleph.   Co.    v.    Chatta- 

Riv.    Teleph.  Co.,   135   N.    Y.    393.     Ac-  nooga  El.  Ry.  Co.  (Tenn.  Ch.),  2   Amer. 

cord,    Wisconsin    Teleph.     Co.     v.     Eau  El.  Cas.  323  [1889];  Wichita  &  Sub.   Ry. 

Claire   St.    Ry.  Co.   (Wis.),  3  Amer.    El.  Co.  (Kans.  Dist.  Ct.,  Sedgwick  County) 

Cas.   383  [1890];  Birmingham  Trac.   Co.  [June  29,  1889]. 

v.   Bell  Teleph.   Co.  (Ala.),   24  So.   Rep.  6 Central  Union  Teleph.  Co.  v.  Sprague 

731  [1898];   National   Bell  Teleph.  Co.  v.  E.  Ry.  &  Motor  Co.,  2  Amer.    El.   Cas. 

Baker  (Eng.),  2  Ch.  186  [1893].     And  see  307    [1889];    Wisconsin    Teleph.    Co.    v. 

Pennsylvania  Teleph.   S.  Co.  v.  Wilkes-  Eau  Claire  St.  Ry.  Co.,  3  Amer.  El.  Cas. 

barre  &  S.   W.  Ry.  Co.,    n  Pa.  Co.  Ct.  383  [1890]. 

*  See  Sees.  798-841,  infra. 


§29^.          OPERATIONS  PRELIMINARY    TO    CONSTRUCTION.  194 

itself  by  new  devices  and  appliances,  it  seems  that  the  cost  of  such  remedies 
may  be  recovered  in  an  action  at  law.1 

Some  of  the  cases  refuse  any  relief  to  telephone  or  telegraph  companies 
from  earth  current,  for  the  reason  that  to  do  so  would  give  to  them  a  monopoly 
for  its  feeble  current  of  the  earth  within  a  considerable  radius,  against  all 
other  forms  of  electrical  energy  which  might  require  its  use;  making  the 
determination  of  the  question  of  whether  an  injunction  should  issue  one  of 
comparative  degree  or  extent,  and  considering  the  delicate  sensibility  of  the 
telephone  to  ordinary  dynamic  currents,  and  the  small  expense  at  which  the 
telephone  company  could  secure  effective  relief,  compared  with  what  it  would 
cost  the  railway  company.2 

The  English  courts  have  criticised  the  American  courts  in  one  respect 
in  their  determination  of  the  rights  of  companies  engaged  in  the  use  of 
electricity,  wherein  they  have  excused  the  owner  of  land,  in  using  his  land  for 
an  unnatural  or  extraordinary  purpose,  from  responsibility  for  the  conse- 
quences of  such  user  to  his  neighbor  except  when  they  result  from  his  negli- 
gence. The  doctrine  of  the  case  of  Cumberland  Telephone  Co.  v.  United 
Electric  Railway  Co.,  that  where  a  person  is  making  a  lawful  (?)  use  of 
his  own  property  or  of  a  public  franchise  in  such  manner  as  to  injure 
another,  his  liability  depends  on  the  fact  that  he  has  made  use  of  the  means 
which,  in  the  progress  of  science  and  improvement,  have  been  shown  by  ex- 
perience to  be  the  best,  and  that  he  is  not  bound  to  experiment  with  recent 
inventions  not  generally  known,  or  to  adopt  expensive  devices  when  it  lies  in 
the  power  of  the  person  injured  to  adopt  an  effective  and  inexpensive  method 
of  prevention,  is  questioned.3 

The  doctrine  of  negligence  or  due  care  and  skill  is  applied  to  cases  where 
injury  results  from  contact  of  wires;  and  it  is  equally  the  duty  of  both  com- 
panies using  electricity  to  protect  their  lines  so  that  they  shall  not  come  in 
contact.  Mandamus  will  issue  to  require  an  electric  railway  to  maintain 
guard-wires  to  prevent  contact  in  anticipation  of  falling  wires  or  poles  break- 
ing. The  question  of  negligence  or  failure  to  take  proper  precautions  is  a 
question  for  the  jury  under  proper  instructions.4 

As  the  use  of  electricity  for  lighting  and  power  purposes  extends  over  but 
a  few  years,  the  cases  upon  the  subject  of  disturbance,  interference,  and 
physical  injuries  are  necessarily  few.  Such  as  there  are  have  been  collected 
.and  published  recently  in  a  book  by  Mr.  Edward  Q.  Keasbey,  of  the  New 
Jersey  bar,  to  which  the  reader  is  referred. 

Central  Un.    Teleg.    Co.   v.   Sprague  •    'Cumberland   Teleph.    Co.   v.    United 

E.  Ry.  &  Motor  Co.  (Ohio  Com.  PL),  2  Elec.   Ry.   Co.,  42  Fed.   Rep.   273.     And 

Amer.  El.  Cas.  307  [1889];  semble,  Water-  see  National   Bell  Teleph.   Co.   v.   Baker 

vliet    Tpk.    &    R.    Co.    v.    Hudson    Riv.  (Eng.),  2  Ch.  186  [1893]. 

Teleph.    Co.,    61    Hun   141;    but   see    135  'Cumberland    Teleph.    Co.    v.    United 

N.  Y.  393.      Contra,  Cumberland  Teleph.  Elec.  Ry.  Co.,  42  Fed.  Rep.  273. 

Co.  v.   United    Elec.    Ry.    Co.,    42    Fed.  *  Keasbey  on  Electric  Wires  242. 
Rep.  273. 


CHAPTER  XVII. 
LIGHT  AND  AIR  INCIDENT  TO   LAND. 

301.  Free  and  Uninterrupted  Use  of  Light  and  Air  Incident  to  Land. — 

The  owner  of  land  has  the  right  to  the  enjoyment  of  the  uninterrupted  passage 
of  the  light  over  his  land,  and  to  the  free  circulation  of  the  air  above  it  in  a 
reasonably  pure  and  wholesome  condition.  Anything  which  deprives  him  of 
this  enjoyment  by  charging  the  air  with  dust,  smoke,  and  noxious  gases  and 
vapors,  thus  producing  injury  to  property,  health,  or  comfort,  is  a  nuisance. 
The  law  will  not  hesitate  to  declare  such  impurities  a  nuisance  when  they 
permeate  the  atmosphere  in  unreasonably  dense  volumes,  or  when  they  are  so 
carelessly  or  unskillfully  disposed  of  as  to  produce  an  interruption  of  the 
comfortable  enjoyment  of  life  or  property. 

Certainly  some  degree  of  impurity  will  be  permitted,  for  a  man  cannot 
occupy  his  dwelling  and  consume  fuel  in  it,  for  domestic  purposes,  without 
its  impairing  the  natural  purity  of  the  air  to  some  degree.  A  building  cannot 
be  erected  or  a  tree  planted  near  the  house  of  another  without  in  some  degree 
diminishing  the  quantity  of  light  which  the  adjoining  owners  enjoy,  but  such 
small  interruptions  will  not  give  a  right  of  action,  for  they  are  necessary 
incidents  to  the  common  enjoyment,  by  all,  of  their  rightful  possessions.  The 
pollution  of  air  or  the  obstruction  of  the  light  must  be  to  such  an  extent  or 
degree  as  causes  an  inconvenience  materially  interfering  with  the  ordinary 
physical  comforts  of  human  existence,  and  not  an  existence  merely  according 
to  the  elegant  and  dainty  modes  and  habits  of  living,  but  according  to  the 
plain,  sober,  and  simple  notions  that  obtain  among  the  people.1  The  degree 
of  smoke  permissible  in  the  atmosphere  will  depend  somewhat  upon  the  com- 
mercial character  and  the  size  of  the  community,  as  more  or  less  pollution  is 
an  unavoidable  feature  of  living  in  modern  times,  and  especially  in  cities.  It 
cannot  be  expected  that  an  atmosphere  shall  be  entirely  free  from  artificial 
impurities,  but  only  an  atmosphere  as  free  and  pure  as  could  reasonably  be 
expected  in  view  of  the  location  and  the  business  of  the  community.2 

The  law  recognizes  only  a  tangible  or  visible  injury  from  smoke,  dust,  or 
noxious  vapors,  and  the  injury  must  result  from  an  unreasonable  use  of  the 

1  Walter  v.  Selfe,  4  Eng.   Law  &   Eq.       486. 

15;  Embry  v.  Owen,  4  Eng.  Law  &  Eq.  2  Wood's  Law  of  Nuisance,  2d  ed.,496. 

195 


§  302.          OPERATIONS  PRELIMINARY    TO    CONSTRUCTION.  196 

property,  that  is,  an  unreasonable  use  in  view  of  the  circumstances  relied  upon 
to  sustain  the  charge  of  nuisance.  It  has  therefore  been  held  that  smoke 
ordinances  were  wkhin  the  proper  exercise  of  police  power  when  one  kind  of 
fuel  will  produce  a  smoke  less  obnoxious  than  another  kind ;  and  it  has  been 
held  the  duty  of  manufacturers  to  use  that  kind  of  fuel  which  is  least  annoy- 
ing. The  use  of  a  fuel  which  created  a  smoke  which  left  a  bad  taste  in  the 
mouths  of  those  breathing  it,  or  a  peculiar,  pungent  effect,  has  been  held  to 
create  a  nuisance. 

The  degree  of  personal  discomfort  required  tin  order  that  a  lawful  business 
creating  dust,  smoke,  or  vapors  should  be  declared  a  nuisance  is  one  of  fact 
under  the  peculiar  circumstances  of  the  case,  and  is  not  a  question  of  law.  It 
has  been  determined  that  there  must  be  a  sensible  diminution  of  the  comfort- 
able enjoyment  of  the  premises,  or  such  a  physical  discomfort  as  to  detract 
sensibly  from  the  ordinary  enjoyment  of  life.  Such  injuries  have  been  held 
to  include  the  discoloration  of  buildings  or  furniture,  or  of  clothes  or  goods, 
injury  and  destruction  to  vegetation,  or  a  deposit  of  cinders  or  chemical  dust. 
A  business  that  merely  impairs  the  rental  value  of  property  or  disturbs  the 
fastidious  taste  or  delicate  sensibility  of  neighboring  inhabitants  has  been  held 
not  a  nuisance,  nor  such  an  injury  as  will  warrant  enjoining  it. 

302.  Instances  of  Interference  with  Light  and  Air. — The  smoke  and 
soot  from  bituminous  coal  from  a  mill,  or  from  a  blacksmith-shop,  or  from  a 
low  dwelling-house;  or  that  from  a  planing-mill  that  uses  shavings,  sawdust, 
and  chips  as  fuel;'  or  the  smoke  and  acid  vapors  from  a  factory,  may  be 
injurious  to  the  use  and  enjoyment  of  land  to  such  a  degree  as  to  warrant  the 
owner  in  having  them  abated  as  nuisances,  or  to  entitle  him  to  damages. 

Any  manufacturing  plant  is  likely  to  be  adjudged  a  nuisance  as  the  land 
in  its  vicinity  becomes  occupied  and  is  used  for  habitation,  and  especially 
one  engaged  in  the  manufacture  of  noxious  or  acrid  chemicals,  or  one 
requiring  the  continuous  operation  of  large'  furnaces,  as  iron-  or  glass-works, 
lime-,  brick-,  or  pottery-kilns,  or  a  power-plant.1  It  makes  little  difference 
whether  the  injury  be  due  to  smoke,  dust,  or  vapors  if  the  injury  be  substan- 
tial and  apparent. 

The  injury  need  not  be  to  the  material  substance  of  the  land  or  to  the 
vegetable  growths  or  artificial  structures  which  it  bears;  it  is  an  invasion  of 
the  owner's  rights  if  it  deprives  him  of  reasonably  free  and  full  enjoyment  of 
it,  considering  his  personal  comfort  and  pleasure.  He  is  not  expected  nor 
required  to  endure  unpleasant  and  disturbing  noises  or  noisome,  disgusting 
odors  or  stenches.  Any  one  who  creates  such  things  as  are  sensibly  offensive 
or  as  produce  physical  discomfort  is  invading  the  landowner's  rights.  Such 
are  rolling-mills,  shops  that  work  sheet  metals,  blacksmith  and  hammer  shops, 
planing-  and  saw-mills  and  factories,  the  operations  of  which  are  attended  with 
screeching,  grating,  rasping  noises  and  heavy  thuds;  or  gas-works,  tanneries, 

1 16  Amer.  &  Eng.  Ency.  Law  948,  949. 


LIGHT  AND    AIR   INCIDENT   7V   LAND.  §  303. 

fat-rendering  and  soap-making  establishments,  glue-works,  garbage-disposal 
plants,  and  many  other  factories  that  are  offensive  and  unbearable  in  an 
inhabited  community.1 

These  and  a  thousand  others  much  less  disagreeable  may  not  be  operated 
to  the  sensible  physical  discomfort  of  landowners  in  the  vicinity;  including 
such  common  things  as  slaughter-houses,  pig-pens  and  barn-yards,  livery- 
stables,  ponds  of  stagnant  water,  etc.2  Other  instances  of  nuisances  to 
property-owners  are  the  maintenance  of  such  an  excessive  heat  by  an  adjacent 
owner  as  to  render  the  occupation  of  the  premises  of  the  former  uncomfortable,3 
or  the  keeping  of  fires  that  are  threatening,  or  the  storage  of  explosive  and 
inflammable  substances  in  such  a  way  as  to  be  dangerous  to  neighboring 
property. 4 

303.  Public  and  Private  Nuisances. — Such  interferences  with  the  private 
rights  of  an  individual  landowner  should  be  distinguished  from  public  or 
common  nuisances  whiclj  affect  the  community  at  large  or  a  considerable 
portion  of  it.  Interference  with  the  individual  rights  of  one  person  or  a 
determinate  number  of  persons  is  sometimes  called  a  private  nuisance  and 
may  be  the  ground  of  a  civil  action,  while  a  public  nuisance  (nuisance 
proper)  is  the  subject  of  an  action,  suit,  or  an  indictment  by  the  people  or  the 
state,  by  a  public  official,  the  attorney-general. 

For  an  individual  to  maintain  a  suit  to  abate  a  public  nuisance  he  must 
have  a  special  interest  (must  have  suffered  some  special  damage)  beyond  that 
of  the  general  public.5  The  dumping  of  street-cleanings  by  a  city  near 
plaintiff's  house,  so  as  to  annoy  him  by  the  noxious  and  unhealthy  odors  and 
vapors  arising,  whereby  he  and  his  family  were  made  sick,  and  his  property 
depreciated,  states  a  special  injury.6  The  plaintiff  can  recover  for  defendant's 
wrongful  maintenance  of  a  nuisance  irrespective  of  whether  or  not  he  himself 
maintained  one  on  his  own  land.7  If  several  families  suffer,  their  actions 
should  be  several  and  not  joint,  as  where  different  persons  suffer  damages  from 
the  location  of  a  pest-house  near  them.8 

Public  or  common  nuisances  are  those  that  affect  the  community  at  large 
or  some  considerable  portion  of  it,  such  as  the  inhabitants  of  a  town,  and  the 
person  committing  such  public  or  common  nuisance  is  liable  to  criminal 
prosecution.  A  public  nuisance  does  not  always  create  a  civil  cause  of  action 
for  any  person,  but  it  may  do  so  under  certain  circumstances.  A  private 
nuisance  affects  only  one  person  or  a  certain  number  of  persons  and  is  a 
ground  for  civil  proceedings  only.  Generally  a  private  nuisance  affects  the 

1  Board  v.  Lederer  (N.  J.  Ch  ),  29  All.       (Cal.),  53  Pac.  Rep.  1118. 

Rep    444  6City   of  New  Albany  v.   Slider  (Ind. 

2  16  Amer.  &  Eng.  Ency.    Law  953-955-       App.),  52  N.  E.  Rep.  626  [1899]. 
8Grady  v.  Walsner,  46  Ala.  381;  Rein-  7  Correll   v.    City    of     Cedar     Rapids 

hart  v.  Mantasti,  61  L.  T.  N.  S.  328.  (Iowa),  81  N.  W.  Rep.  724. 

4i6  Amer.  &  Eng.  Ency.  Law  Q55.956.  8  Paducah,  City  of,  v.  Allen  (Ky.),  49 

5i6  Amer.  &  Eng.  Ency.  Law  940,  941  ;  S.  W.  Rep.  343. 
Sriskiyou   Lumb.    &  Mer.   Co.   v.    Rostel 


§  304.  OPERATIONS  PRELIMINARY    TO    CONSTRUCTION.  198 

control,  use,  and  enjoyment  of  immovable  property.1  A  public  nuisance  at 
common  law  was  anything  offensive  to  the  sight,  smell,  or  hearing,  erected  or 
carried  on  in  a  public  place  where  people  dwell  or  pass,  or  have  a  right  to 
pass,  to  their  annoyance.2 

Whether  or  not  certain  acts  or  conditions  are  public  nuisances  depends 
frequently  upon  their  locality.  Certain  acts  or  structures  might  be  a  public 
nuisance  if  located  in  public  places  or  a  thickly  settled  community,  when  they 
would  not  be  so  if  located  in  remote  and  unfrequented  places,  as  the  outskirts 
of  a  village  or  city. 

Thus  a  brew-house,  a  glass-house,  a  chandler's  shop,  a  pigsty,  are  public 
or  common  nuisances  when  set  up  in  such  a  populous  neighborhood  of  a  city 
that  they  necessarily  annoy  the  neighborhood.  A  slaughter-house,  a  soap- 
works,  a  tallow  factory,  a  poudrette  factory,  a  livery  stable,  a  tannery,  a  ceme- 
tery, a  brick-kiln,  a  blacksmith-shop,  a  powder-house,  and  even  a  wagon-load 
of  offensive  material  which  emits  an  odor,  may  each- become  a  public  nuisance 
in  a  thickly  settled  locality.3 

These  same  structures  and  acts  may  also  be  private  nuisances,  and  they 
might  be  held  no  nuisance  at  all  in  sparsely  settled  localities.  A  tree  or  post 
on  the  margin  of  a  crowded  street  has  been  held  a  public  nuisance,  although 
it  would  not  be  on  a  retired  street.4 

304,  Ordinances  to  Prevent  Smoke  Nuisance. — To  prevent  discomforts 
and  the  disagreeable  effects  of  smoke,  many  cities  have  passed  ordinances  for- 
bidding the  use  of  soft  coal  and  other  fuels  which  create  dense  black  smoke, 
and  the  constitutionality  of  these  ordinances  has  been  attacked  upon  the 
ground  that  they  discriminated  between  classes  of  persons  residing  within  the 
same  municipal  territory. 

It  has  been  held  that  smoke  is  not  a  nuisance  per  se  unless  so  declared 
by  statute.5  A  city  ordinance  forbidding  under  penalty  the  emission  of  dense 
smoke  from  a  chimney  in  the  city,  but  exempting  dwelling-houses  and  steam- 
boats from  its  operation,  was  held  valid.6  An  ordinance  declaring  the  emis- 
sion of  dense  smoke  under  certain  circumstances  a  nuisance,  and  prescribing 
the  penalty  of  each,  and  also  providing  that,  nothing  herein  contained  shall  be 
construed  to  apply  to  manufacturing  establishments  using  the  entire  product 
of  combustion,  and  the  heat,  power,  and  light  produced  thereby  within  the 
building  where  they  were  generated  within  the  radius  of  three  hundred  feet 
therefrom,  was  held  unconstitutional.  The  court  said:  "No  arbitrary  dis- 
tinction between  different  kinds  or  classes  of  business  can  be  sustained,  the 
conditions  being  otherwise  similar.  The  statute  is  directed  against  this 

1  16  Amer.  &  Eng.  Ency.  Law  926.  2  Sneed  263;  Commonwealth  v.  Reed,  34 

2Hackey  v.   State,    8  Ind.    494;  West-  Pa.  St.  275. 

cott  v.  Middleton,  43  N.  J.  Eq.  478.  5  St.   Louis  v.   Heitzeberg    Packing    & 

3  16  Amer.  &  Eng.   Ency.  Law   927  et  Provision  Co.,  42  S.  W.  Rep.  954. 

seq.  6  People    v.    Lewis,    86  Mich.   273,  two 

4  Franklin  Tpk.  Co.  v.  Crockett  (Tenn.),       justices  dissenting. 


199  LIGHT  AND  AIR  INCIDENT   TO   LAND.  §  305. 

nuisance  occasioned  by  dense  smoke,  and  it  can  make  no  practical  difference 
in  what  business  the  owners  or  occupants  of  the  buildings  in  which  such 
smoke  -is  produced  are  engaged ;  whether  the  heat  evolved  from  the  combus- 
tion of  the  fuel  producing  such  smoke  is  applied  to  the  generation  of  steam 
or  other  useful  purposes;  or,  further,  whether  steam-power  is  used  in  manu- 
facturing or  is  applied  to  other  purposes,  as  a  grain -elevator  or  hoisting 
apparatus  in  a  warehouse."  The  court  held  the  distinction  or  classification 
attempted  to  be  made  untenable,  and  that  the  act  was  therefore  invalid. 1 

305,  Vapors  and  Odors  from  Gas-plant. — The  manufacture  of  gas  neces- 
sarily involves  the  production  of  vapors,  odors,  and  fluids  that  are  offensive 
and  injurious  to  health;  but  gas  being  a  necessity  to  a  community,  its  manu- 
facture is  not  regarded  as  a  nuisance  of  itself.  When  a  gas  company  is 
authorized  by  charter  to  erect  gas-works  and  operate  them  for  the  purpose  of 
manufacturing  gas  for  the  public,  it  is  responsible  in  damages  for  the  ordinary 
and  usual  odors  emitted  if  they  constitute  a  nuisance,  and  the  fact  that  the 
company  is  not  negligent  does  not  protect  it  from  liability. a 

That  which  would  offend  an  ordinary  man,  and  not  a  delicate-nosed 
person,  has  been  defined  as  a  nuisance.3  This  question  must  be  decided  by 
a  jury,  and  it  has  been  held  not  a  question  of  the  comparison  of  the  condition 
of  one  property  owner  with  that  of  his  neighbors,  but  the  question  whether 
a  gas  company  caused  the  said  property  owner  actual  damage.  A  jury  should 
not  be  instructed  that  the  owner  is  entitled  to  the  same  degree  of  comfort  as 
that  enjoyed  by  other  persons  in  the  neighborhood.4 

It  has  been  held  that  a  landowner  could  not  recover  damages  for  injuries 
caused  by  the  erection  of  a  low  chimney  on  an  adjoining  lot  which  sent 
smoke  and  cinders  upon  the  premises  and  damaged  the  owner's  well;5  but 
when  a  gas  company  creates  smells,  smoke,  and  noxious  odors  so  annoying 
to  persons  residing  near  the  gas-works  as  to  render  his  premises  uncomfortable 
for  habitation,  it  was  held  a  private  nuisance.6  If,  however,  the  buildings 
and  processes  of  the  company  were  of  the  best  description  and  its  servants 
were  careful  and  the  company  exercised  due  care  and  diligence  in  its  business, 
it  seems  that  an  indictment  will  not  lie  against  a  corporation  which  has  been 
authorized  by  the  legislature  to  manufacture  gas  to  be  used  for  lighting  the 
'streets'  and  buildings  of  the  city.  The  act  of  the  legislature  bars  the  people 
from  making  a  public  complaint  by  indictment  so  long  as  the  gas  company 
conducts  its  business  with  skill,  care,  and  science.7 

An  electric-light  plant  will  not  be  abated  as  a  nuisance  where  it  is 
operated  in  a  manufacturing  district,  does  not  emit  offensive  smoke  or 

1  State  v.   Ramsey  Co.  (Minn.),   51  N.       12  Ohio  St.  392. 

W.  Rep.  112  [1892].  5  Grange    v.    Pately   Bridge   G.    &  W. 

2  8    Amer.    &    Eng.    Ency.    Law    1281,       Co..  14  Gas  J.  309. 

1282.  68  Amer.  &  Eng.  Ency.  Law  1282  and 

3Bramwell,    T.,  in  Tilly  v.   Slough  G.  cases  cited. 

Co..  17  Gas  J.  331.  7  People  z/.   N.   Y.   G.   Co.  (N.   Y.),  64 

4  Columbus  G.  L.  &  C.  Co.  v.  Freeland,  Barb.  55. 


§  306.          OPERATIONS  PRELIMINARY   TO    CONSTRUCTION.  2OO 

•cinders,   and    does   no    material    injury  to   plaintiff's    property,   though    the 
machinery  makes  a  buzzing  noise  till  a  late  hour  of  the  night.1 

306.  Acts  that  Create  Nuisances. — A  village  empowered  to  maintain  and 
construct  sewers   is  liable  for  injury  resulting  from   noxious  vapors  coming 
upon  the  premises  of  abutting  owners  through  it*  negligence  in  the  exercise 
of  such  p'ower.2 

The  moving  of  a  building  through,  or  the  unloading  or  temporary  piling  of 
lumber  in,  the  streets  of  a  village  or  city  without  permission  of  the  authorities, 
is  a  nuisance.3  Whether  or  not  a  carriage-stone  of  usual  size  and  shape  and  in 
the  usual  position  on  the  street  is  a  common  nuisance  is  a  question  of  law, 
not  of  fact.4 

The  fact  that  a  building  is  intended  to  be  used  for  a  purpose  which  will 
create  a  nuisance  is  not  sufficient  ground  for  an  injunction  to  restrain  the 
erection  thereof,  unless  it  be  alleged  or  proved  that  the  building  could  not  be 
devoted  to  other  legitimate  uses.5  A  grantor  who  has  erected  a  structure 
which  creates  a  nuisance  is  liable  for  the  continuance  of  the  nuisance  when 
he  has  covenanted  in  the  deed  for  quiet  enjoyment  and  right  to  maintain  such 
structure.6 

307.  Easements   of  Light  and  Air. — Easements  are  sometimes  created 
which  give  to  one  person  a  right  to  have  light  and  air  come  to  his  windows 
unobstructed   across  the   land   of  another.     In  England   this  right   may  be 
acquired  by  prescription  or  adverse  user  for  the  full  statutory  period.      In  the 
United  States  generally  this  easement  cannot  be  created  by  prescription,  and 
it  is  inconsistent  with  the  progress  and  development  of  a  new  country  which 
is  growing  and  changing  as  rapidly  as  is  the  United  States.      Some  states  hold 
that  the  easement  and  ancient  rights  cannot  be  prescribed  for,    and  these  are 
Alabama,   Connecticut,    Georgia,    Iowa,    Indiana,    Maine,   Maryland,    Massa- 
chusetts,   New    York,    Ohio,    Pennsylvania,    South    Carolina,    Texas,    West 
Virginia,  and  Vermont.     The  states  holding  that  this  easement  may  be  pre- 
scribed for  are  Illinois,  Louisiana,  and  New  Jersey.7 

Agreements  reserving  or  creating  certain  rights  of  light  and  air  over  land 
will  be  sustained  and  enforced  by  the  courts,  the  same  as  agreements  and 
grants  of  other  easements.  A  reservation  in  a  deed  of  an  easement  to  light 
and  air  from  premises  sold  operates  as  a  grant  of  a  newly  created  easement, 
and  the  courts  will  enjoin  the  erection  of  a  building  which  shall  interfere 
substantially  with  light  and  air  of  the  windows  of  the  person  creating  the 
easement.8  An  intention  to  create  an  easement  of  light  and  air  over  a  court 

1  McCann  v.   Strang  (Wis.),   72  N.  W.  [1898]. 

Rep.  1117  [1897].  5  Dalton   v.    Cleveland,   etc.,    Ry.    Co. 

2Willett    v.    St.   Albans  (Vt.),  38    Atl.  (Ind.),  43  N.  E.  Rep.  130. 

Rep.  72  [1897].  6  East  Jersey  W.  Co   v.  Bigelow  (N.  J.), 

3  Concord  v.  Burleigh  (N.   H.),  36  Atl.  38  Atl    Rep.  631  [1897]. 

Rep.  606;  Johnson  Chair  Co.  v.  Agresto,  76  Amer.  &  Eng.  Ency.  Law  152. 

73  111.  App.  384  [18987.  8Hagerty  v.  Lee  (N.  J.),  15  Atl.    Rep. 

4  Robert  v.  Powell,  52  N.  Y.  Supp.  918       399  [if 


2OI  LIGHT  AND   AIR   INCIDENT   TO   LAND.  §  308. 

cannot  be  inferred  from  a  reference  in  an  administrator's  deed  describing  the 
property  as  bounded  "  in  part  on  a  court  called  *  P.  place.'  "  l 

Such  an  agreement  by  a  person  to  surrender  to  the  adjoining  owner  who 
is  contemplating  the  erection  of  a  structure  of  all  his  rights  to  light  and  air 
over  the  said  owner's  lot  is  within  the  statute  of  frauds.2  A  court  will  take 
judicial  notice  that  a  brick  wall  built  3  feet  8  inches  from  certain  windows 
and  at  least  15  inches  above  them  is  an  obstruction  of  light  and  air.3 

Carrying  on  an  offensive  trade  for  twenty  years  in  the  same  place,  away 
from  buildings  and  public  roads,  does  not  justify  a  continuance  thereof  after 
the  building  of  houses  and  laying  out  of  roads,  so  that  it  becomes  a  nuisance.4 
In  New  York  state  twenty  years'  adverse  possession  of  part  of  the  air, 
light,  and  access  appurtenant  to  a  city  lot  by  means  of  the  maintenance  of  an 
elevated  road  in  the  street  in  front  of  such  lot  is  sufficient  to  give  title  to  such 
easements  by  prescription  even  though  the  possession  is  based  on  no  actual 
adverse  title.5 

Where  the  basement  of  a  building  is  lighted  from  above  by  a  floor-light, 
the  right  to  the  light  from  such  source  is  an  easement  which  passes  with  a 
lease  of  the  basement,  in  the  absence  of  a  restriction  in  the  lease;  and  the. 
tenant  of  the  room  above  will  be  enjoined  from  covering  the  floor.6 

The  right  to  discharge  smoke  and  soot  on  the  premises  of  another  is  an 
easement,  within  Code,  §  2031,  providing  that,  in  suits  in  which  title  to  an 
easement  in  land  is  claimed  through  adverse  possession,  the  use  of  the  same 
shall  not  be  admitted  as  evidence  that  the  party  claimed  the  easement  as  his 
right.7 

308,  Interference  of  Air  and  Light  by  Boundary  Walls  and  Overhang- 
ing Structures.* — In  New  York  state  a  person  may  erect  a  structure  on  his 
own  lot  for  the  purpose  of  preventing  a  view  of  his  premises  by  a  neighbor 
even  though  it  obstruct  the  light  of  the  neighbor's  windows.8  He  may  erect 
a  screen  or  fence  upon  a  party-wall  dividing  two  buildings;  but  he  is  under 
no  obligation  to  fence  the  top  of  the  party-walls  so  as  to  protect  persons  who 
may  be  on  the  roof  of  adjoining  buildings  from  falling  over  into  his  yard. 
There  is  no  exception  to  this  principle  in  favor  of  firemen  using  the  roof  of 
the  adjoining  building  in  the  performance  of  their  duties.9 

An  injunction  restraining  a  person  from   erecting  any  building  so  near  as 

1  Baker  v.  Willard  (Mass.),    50  N.   E.  N.   Y.  220,    distinguished,  and  13  N.  Y. 
Rep.  620  [1898].  Supp.  626,  modified. 

2  Ware   v.    Chew  (N.    J.),   I   Atl.   Rep.  6  O'Neill    v.    Breese   (Super.    Ct.),    23 
746  [1888].  N.    Y.    Supp.    526.     See    Greer    v.     Van 

3  Ware  v.   Chew  (N.   J.),  i    Atl.    Rep.  Meter  (N.  J.  Ch.),  33  Atl.  Rep.  794- 

746  [1888].  7Churchill   v.    Burlington    Water   Co. 

*  Board  v.  Lederer  (N.  J.  Ch.),  29  Atl.  (Iowa),  62  N.  W.  Rep.  646. 

Rep.  444.  8Levy  v.  Samuel  (Super.  Ct.),  23  N.  Y. 

5  American     Bank-Note    Co.    v.     New  Supp.  825. 

York  El.  R.  Co.  (N.  Y.  App.),  29  N.  E.  9  Woods  v.  Miller,  52  N.  Y.  Supp.  217. 
Rep.  302;  Broiestedt  v.  Railroad  Co.,  55 

*  See  Sec.  341,  infra. 


§  308.  OPERATIONS  PRELIMINARY    TO    CONSTRUCTION.  2O2 

to  exclude  the  light  from  plaintiff's  house  is  not  sufficiently  denned,  it  not 
appearing  whether  a  building  would  be  permissible  under  any  circumstances, 
and,  if  so,  how  near.1  An  action  may  not  be  had  for  the  removal  of  such  a 
structure  as  a  bay-window,  because  such  windows  extend  into  the  street  and 
obstruct  the  view,  where  it  does  not  appear  that  there  is  any  serjous  interfer- 
ence with  light,  air,  or  acces.s.2 

The  construction  of  a  building,  so  that  part  of  it  overhangs  a  street  in  a 
to\\n  in  such  a  manner  that  a  neighbor's  property  is  rendered  more  liable  to 
fire  than  before,  thereby  increasing  the  cost  of  insurance  and  depreciating  the 
market  value  of  the  property,  ordinarily  gives  no  right  of  action  to  the  party 
aggrieved.3 

Although  private  persons  may  not  enjoin  projections  into  the  street,  they 
may  prevent  buildings  from  being  built  which  overhang  the  boundary  of  their 
respective  lots,  or  recover  substantial  damages  for  the  trespass.  If  they  have 
stood  by  and  seen  the  building  erected  without  notice  and  protest,  they  may 
be  denied  a  writ  of  mandamus  requiring  that  the  encroaching  wall  or  project- 
ing roof  be  taken  down,  but  damages  will  be  awarded  to  compensate  the 
owner  for  the  injury  done  to  his  land.4 

This  subject  is,  however,  so  closely  allied  to  the  chapter  following  that  it 
will  be  further  treated  therein,  to  which  the  reader  is  directed.  * 

Robinson  v.  Clapp,  65  Conn.  365.  Rostel  (Cal.).  53   Pac.   Rep.   1118  [1898]. 

a  Wormser  v.   Brown  (Sup.),  25  N.   Y.  Contra,  People  ex  rel.  Ackerman  v.  True, 

Supp.   553.     But  see   Hess  v.    Lancaster  N.  Y.  Sup.  Ct.,  June  1900. 

(Com.  PI.),  4  Pa.  Dist.  Rep.  737.  4 Crocker  v.  Manhattan  L.  Ins.  Co.,  N. 

3  Siskiyou  Lumber  &  Mercantile  Co.  v.  Y.  Sup.  Ct.,  June  1900. 

*  See  Sec.  366,  in/re. 


CHAPTER  XVIII. 

PROPERTY   RIGHTS   DEFINED   BY   BOUNDARY   LINES.     LATERAL 

SUPPORT. 

311.  Rights  of  Adjoining  or   Contiguous  Owners.  —  Considerable  space 
has  been  heretofore  given  to  the  rights  of  riparian  owners,  and  more  space  will 
be  given  hereafter  to  the  boundary-lines  of  contiguous  or  adjoining  owners 
and  to  the  determination  and  location  of  such  boundary-lines.     Before  taking 
up  the  determination  and  location  of  such  lines  it  is  desirable  to  understand 
the  property  rights  of  adjoining  owners  upon  such  a  boundary-line.     Many 
of  these  things  will  be  discussed  as  directly  incident  to  the  determination  of 
the  boundary-line,  but  there  are  some  rights  which  will  not  be  presented  and 
which  are  best  treated  here. 

The  boundary-line  between  two  adjoining  property  owners  is  frequently 
denned  by  barriers  which  are  employed  not  only  to  designate  the  line  of 
separation  between  two  estates,  but  also  to  prevent  encroachments  and  tres- 
pass, by  keeping  people  or  animals  out  of,  or  off  from,  the  land  of  the  owner. 
Such  obstructions  are  usually  in  the  form  of  fences,  walls,  or  hedges,  and 
may  be  erected  or  planted  upon  the  line  or  at  the  uttermost  limit  of  the 
dividing-line.  When  walls,  fences,  and  ditches  are  built  equally  upon  both 
sides  of  the  dividing-line  they  are  usually  held  to  belong  to  the  two  adjoining 
landowners,  each  owning  an  undivided  interest  in  the  structure.1  By  statute 
it  is  sometimes  provided  that  the  structure  or  fence  may  be  divided  by  fence- 
viewers  or  commissioners,  so  that  each  party  shall  own  and  control  the  whole 
of  a  certain  length  or  a  definite  part  of  the  structure,  but  in  the  absence  of 
such  statute  or  any  express  agreement  the  two  adjoining  landowners  are  joint 
owners  in  the  said  fence  or  structure. 

312.  Trees  and  Shrubs  on  Boundary  Line  —  Line-trees.  —  In  the  country 
it  is  often  the  practice  to  plant  hedges  or  trees  directly  upon  the  dividing-line 
between  estates,  and  where  tracts  of  forests  are  subdivided  by  real  or  imaginary 
boundary-lines  it  often  happens  that  trees  will  stand  upon  the  line,  and  in 
such  cases  they  are  called  "line-trees."     The  line-tree,  it  seems,  need  not 
center  upon  the  boundary-line.     It  is  a  line-tree  if  the  line  passes  through 


v.     Burrell,    n    Mass.    294;       Rawson  v.  Ward,  128  Mass.  552. 
Stoner   v.    Hunsicke.r,    47    Pa.    St.    514; 

203 


§  3T3-  OPERATIONS  PRELIMINARY    TO    CONSTRUCTION.  204 

such  a  part  of  the  stump  of  the  tree  as  to  lead  to  the  presumption  that  the 
tree  was  started  on  the  line. 

The  ownership  of  a  tree  whose  trunk  is  cut  by  the  dividing-line  of  two 
estates  should  be  determined  by  deciding  the  question,  ''Upon  whose  land 
did  the  tree  start  to  grow  ?  "  If  the  tree  started  upon  the  land  of  A  and  has 
increased  in  size  until  the  trunk  has  encroached  upon  the  land  of  B,  his 
neighbor,  it  is  submitted  that  it  should  always  belong  to  A,  who  owned  the 
treet  when  it  started,  the  same  as  do  the  overhanging  branches.  It  makes  a 
difference  whether  the  tree  grows  to  the  line  or  the  line  comes  to  the  tree. 
Trees  that  stand  upon  the  line  as  it  is  run  (surveyed)  are  usually  described 
as  monuments  or  landmarks,  in  which  case  neither  party  can  cut  them  down. 
They  then  become  line-trees  strictly,  and  the  parties  are  either  tenants 
in  common  or  each  is  the  owner  of  an  undivided  half. 

When  trees  are  planted  upon,  or  near  to,  the  dividing-line  of  two  estates 
they  must  necessarily  penetrate  the  soil  of  the  adjoining  owner  and  overhang 
his  land.  The  roots  must  therefore  take  nourishment  from  the  soil,  and  the 
branches  and  leaves  shut  out  the  sunlight  from  that  part  of  the  estate  which 
they  overhang.  If  the  tree  bear  fruit,  the  question  arises  as  to  whom  that 
fruit  belongs  and  who  may  gather  it.  In  the  case  of  a  "line-tree,"  it  is 
pretty  well  settled,  not  only  in  the  United  States,  but  in  England,  and  by  the 
civil  law,  that  the  two  adjoining  owners  are  joint  owners  of  the  tree  and  there- 
fore of  the  fruit.  They  are  the  common  property  of  both.  l 

313.  Ownership  of  Trees  Growing  Near  Boundary  -line.  —  The  earlier 
cases  held  that  when  a  tree  growing  upon  the  land  of  one  man,  whatever  may 
be  its  distance  from  the  line,  extends  any  portion  of  its  roots  into  the  land  of 
another,  they  thereby  become  tenants  in  common  of  the  tree.  An  early 
Connecticut  case  questioned  such  a  doctrine,2  because  there  were  insur- 
mountable difficulties  when  the  principle  was  reduced  to  practice.  That  case 
held  that  it  was  not  a  question  whether  the  branches  and  roots  do  or  do  not 
overhang  and  penetrate  the  land  of  the  adjoining  owner;  that  it  was  the  fact 
alone  which  creates  a  tenancy-in-common  ;  that  if  such  tenancy-in-common 
existed,  it  was  diffused  over  the  whole  tree,  and  that  each  owned  a  propor- 
tionate share  of  the  whole.  The  question  was,  in  what  proportion  did  the 
parties  hold,  and  how  were  the  shares  to  be  determined  ?  What  part  of  its 
nourishment  did  the  tree  derive  from  the  soil  of  the  adjoining  proprietor  ? 
On  what  principle  was  the  account  to  be  settled  between  the  parties  ?  If  the 
line  should  run  through  a  forest  or  grove,  what  rule  was  to  apply  to  those 
trees  growing  so  near  the  line  as  to  extend  some  portion  of  their  roots  across 
it?  How  would  a  man  know  whether  he  was  the  exclusive  owner  of  trees 
growing  entirely  on  his  land,  but  near  the  line  ?  And  how  would  he  know 
whether  he  could  safely  cut  them  without  subjecting  himself  to  an  action  ? 


v.  Belts  (Del.),  39  Atl.   Rep.       v.  Beav«r,  25  N.  Y.  123. 
595;   Hunt  v.  Taylor,  22  Vt.   556;  Carroll  2  Lyman  v.  Hale,  n  Conn.  177,  182. 

v.  Smith  (Md.),  4  Har.  &  J.  128;  Dubois 


2O5      PROPERTY  RIGHTS  DEFINED   BY  BOUNDARY  LINES.     §  314. 

Such  a  doctrine  has  long  since  been  overthrown,  and  it  is  well  settled  now 
that  a  tree  is  wholly  the  property  of  him  upon  whose  land  the  trunk  stands.1 
It  also  seems  to  be  well  settled  that  a  tree  standing  directly  upon  the  line 
between  adjoining  owners,  so  that  the  line  passes  through  it,  is  the  common 
property  of  both  parties,  whether  •  marked  or  not,  and  that  trespass  will  lie  if: 
one  cuts  or  destroys  it  without  the  consent  of  the  other.2 

314.  Liability  for  Destruction  of  Line-trees. — While  the  liability  of  an 
owner  who  has  destroyed  a  line-tree  is  universally  recognized,  yet  it  is  not 
well  settled  that  the  two  adjoining  owners  are  tenants  in  common.  The 
courts  frequently  evade  the  question  by  holding  that  it  is  not  necessary  to 
determine  the  matter. 3  The  essence  of  a  tenancy-in-common  is  a  joint  interest 
in  each  and  every  part  of  the  property,  and  it  is  pretty  well  understood  that 
this  principle  does  not  apply  to  artificial  objects  placed  upon  a  boundary-line: 
by  the  hand  of  man,  such  as  a  wall,  a  fence,  or  a  building.  In  regard  to 
natural  objects,  as  trees,  it  might  be  inconvenient  for  the  parties  to  avail 
themselves  of  their  property  unless  they  were  regarded  as  tenants-in-common. 
One  might  desire  his  part  of  the  timber  of  the  trees,  while  the  other  preferred 
that  they  should  remain  standing.  If  the  ownership  be  a  tenancy-in-common, 
the  remedy  is  clear;  a  partition  or  sale  of  the  trees  might  be  ordered.  In  the 
country  or  on  a  suburban  place  the  destruction  or  maintenance  of  the  trees 
presents  a  different  problem  from  what  is  presented  in  the  city,  where  every 
available  foot,  or  inch  even,  of  ground  is  required  for  .improvement.  If  the 
property  in  line-trees  be  not  regarded  as  a  tenancy-in-common,  the  remedy  is. 
not  clear,  and  in  cases  where  the  boundary-line  runs  through  a  forest  it  is 
more  convenient  to  hold  the  parties  to  be  tenants-in-common.  Whichever 
rule  is  held,  a  remedy  exists  where  the  trees  are  destroyed  by  either  one  of  the 
parties ;  but  if  the  trees  are  destroyed  by  outside  trespassers  and  one  only  of 
the  adjoining  owners  wishes  to  withdraw  his  interest  in  the  property,  the  rule 
applied  makes  a  difference.4 

Either  of  the  owners  of  adjoining  lots  may  lop  off  the  branches  or  roots 
extending  from  the  trunk  of  such  line-tree  over  or  into  his  land.5  Where  the 
restraining  of  a  person  from  removing  a  part  of  the  trunk  of  the  tree  upon 
his  own  land  would  deprive  him  of  the  opportunity  to  build  as  he  desired,  and 
would  produce  a  greater  irreparable  injury  than  would  be  produced  by  the 
removal  of  such  pan  and  the  destruction  of  the  life  of  the  tree,  an  injunction 
will  be  refused  and  the  parties  left  to  settle  their  rights  in  an  action  at  law. 
A  person  cannot  prevent  his  neighbor  from  building  to  the  dividing-line  of 
adjoining  lots,  though  such  building  interfere  with  a  trunk  of  the  tree  and  the 

1Lyman  v.   Hale,  n  Conn.  177;  Skin-  3  Relyea  v.  Bacon,  34  Barb.  547;  Dubois 

ner  v.  Wilder,  38  Vt.  Rep.  115;  Dubois  v.  v.  Beaver,  25  N.  Y.  123. 

Beaver,  25  N.  Y.  123;  Hoffman  v.  Arm-  *  See  Tyler  on  Boundaries  324. 

strong,  46  Barb.  337.  5  Robinson    v.    Clapp,    65    Conn.    365; 

2  Griffin  v.   Bixby,  12  N.  H.  454;  Hoff-  Grandona  v.  Loodal,  70  Cal.  161. 
man  v.  Armstrong,  46  Barb.  337. 


§3*6.          OPERATIONS   PRELIMINARY    TO    CONSTRUCTION.  206 

free  access  of  light  and  air  to  the  windows  of  plaintiff's  house,  nor  is  it  mate- 
rial that  he  has  offered  to  buy  the  land  and  to  pay  therefor  the  sum  at  which 
it  should  be  appraised  by  persons  to  be  selected  by  the  parties.1 

315.  Property  in  Overhanging  Fruit  of  Trees. — When  a  trunk  of  a  tree 
stands  wholly  upon  the  land  of  one  owner  the.  tree  belongs  exclusively  to 
him  even  though  the  roots  grow  into,  and  the  branches  overhang,  the  land  of 
his  neighbor.     The  title  to  the  property  is  well  settled,  and  the  rights  of  the 
two  neighbors  to  appropriate  the  fruit  of  such  trees  or  to  remove  any  part  of 
such  trees  is  equally  well  settled.     The  fruit  of  a  tree  is  as  much  a  part  of  a 
tree  as  are  the  leaves  and  branches,  and  it  is  therefore  held  that  the  fruit  of  a 
tree  belongs  to  the  party  on  whose  land  the  trunk  or  stump  stands.2 

An  adjoining  owner  will  be  liable  in  trespass  for  gathering  the  fruit  which 
overhangs  his  land,  or  for  preventing  the  owner  of  the  tree  from  gathering  it, 
provided  the  latter  can  do  so  without  committing  a  trespass.  If  the  owner 
uses  force  to  prevent  the  owner  of  the  tree  from  gathering  the  fruit  which 
overhangs  his  land,  he  may  be  held  liable  in  damages  for  any  harm  done,  as 
for  assault  and  battery.3 

Whether  or  not  the  owner  of  the  tree  can  pick  the  fruit  from  the  overhang- 
ing branches  is  a  question  about  which  there  is  a  difference  of  opinion. 
Technically  it  is  an  invasion  of  the  adjoining  owner's  rights,  but  by  allowing 
the  branches  and  the  fruit  to  remain  overhanging  his  land  the  latter  may  be 
held  to  have  waived  his  technical  rights.  The  early  English  cases  held  that 
the  owner  of  the  fruit  might  go  and  take  it  if  he  made  no  longer  stay  than  was 
convenient  and  did  no  apparent  damage.4  The  same  rule  was  applied  as 
where  a  tree  is  blown  down  by  the  wind.  The  owner  may  not  enter  without 
such  special  circumstances  to  justify  it,  and  should  not  enter  without  previous 
request  to  the  one  in  possession  of  the  land  upon  which  the  fruit  or  tree  has 
fallen.5 

316.  Lopping  or  Cutting  Overhanging  Branches. — Although  such  is  the 
law,  it  does  not  follow  that  the  owner  of  land  is  obliged  to  have  it  burdened 
by  the  overhanging  branches  or  the  penetrating  roots  of  his  neighbor's  trees. 
If  they  prove  to  be  a  nuisance,  he  may  have  an  action  for  damages  and  it  may 
be  abated.6     The  owner  of  the  adjoining  land  whose  lot  is  overhung  by  the 
branches  may  lop  off  or  clip  the  limbs  and  branches  that  so  overhang  to  the 
extent  that  they  overhang  and  no  more ; 7  and  he  may  cut  the  roots  that  pene- 
trate his  soil,  if  they  cause  damage 8  or  are  a  nuisance. 9     After  lopping  or 

1  Robinson   v.    Clapp,    67    Conn.     538.  Miller  v.  Fawdrye,  Popham  163;  Latch. 
See  also  Relyeaz/.  Beaver  (N.Y.),  34  Barb.  120;  Smith  v.  Kinrick,  7  Com.  Bench  515. 
547.  5Anthoney    v.     Haney,    8     Bing.    186; 

2  Lyman  v.  Hale,  n  Conn.  177;  Skinner  Newkirk  v.  Sabler  (N.  Y.),  9  Barb.  655. 
v.  Wilder,  38  Vt.  115;  Hoffman   v.   Arm-  6  Aiken  v.  Ketchum,  39  Barb.  400. 
strong,  48  N.  Y.  201.  7Grandona  v.  Loodal,  70  Cal.  112. 

'Hoffman  v.  Armstrong,  46  Barb.  337,  BLons'dale  v.  Nelson,  2  B.  &  C.  302. 

48  N.  Y.  201.  9Tissot  v.  Gt.  So.  Tel.  Co.,  39  La.  Ann. 

4Viner's    Abridgment,    tit.  Trespass;       996. 


207     PROPERTY  RIGHTS  DEFINED    BY  BOUNDARY  LINES.     §317- 

trimming  off  such  limbs  and  branches  it  seems  that  he  may  not  carry  them, 
and  the  fruit  they  bear,  away  and  convert  them  to  his  own  use;1  and  if  the 
owner  prune  his  trees,  he  cannot  enter  and  take  away  the  limbs  that  fall  upon 
the  adjoining  land  if  by  using  due  care  their  falling  might  have  been  prevented. 
He  should  plead  that  he  did  his  best  to  hinder  them  from  falling.2 

Whatever  unlawfully  annoys  or  injures  another  may  be  abated,  taken 
away,  or  removed  by  the  party  injured  so  long  as  he  commits  no  riot  in  doing 
so.  If  the  branches  of  a  neighbor's  trees  spread  over  his  land,  they  may  be 
cut  down.  They  may  not  be  cut  in  anticipation  that  they  will  eventually 
become  a  nuisance.  The  same  doctrine  applies  to  roots  penetrating  neigh- 
boring soil.  A  Virginia  creeper  which  extends  itself  over  the  side  of  a  house 
gives  the  owner  a  right  to  cut  it  down  and  clear  it  from  his  house  as  a 
nuisance.  He  should  use  no  greater  force  and  violence,  and  do  no  greater 
damage,  than  is  necessary.3  In  abating  a  nuisance  such  as  arises  from  over- 
hanging branches  care  must  be  taken  to  cut  off  only  so  much  as  actually 
overhangs  the  land  of  the  party  injured. 

The  permitting  of  branches  to  overgrow  and  overhang  a  neighbor's  land, 
or  the  roots  to  penetrate  his  soil,  is  an  unequivocal  act  of  negligence,  and  is 
a  nuisance  to  the  servient  estate.  It  is  a  nuisance  from  omission,  in  distinc- 
tion from  a  nuisance  by  an  act  of  commission.  The  latter  class  of  nuisances, 
which  are  committed  in  defiance  of  the  person  injured,  may  be  abated  by  the 
party  himself  without  notice  to  the  person  committing  them;  but  in  nuisances 
from  omission  the  party  who  permits  their  existence  should  be  given  notice  of 
them,  that  he  may  have  an  opportunity  to  remove  the  cause  himself  before 
another  intrudes  upon  his  land  to  abate  it.  To  justify  an  entry  upon  the  land 
of  another  in  such  a  case  notice  should  be  given  of  the  nuisance  and  a  demand 
that  it  be  abated.  The  security  of  lives  or  the  protection  of  property  might 
sometimes  require  prompt  and  immediate  action  that  would  excuse  a  trespass, 
and  that  would  not  allow  time  to  call  upon  the  property  owner  to  remedy  it. 
In  such  a  case  the  abatement  of  a  nuisance  from  omission  would  be  justified. 
In  all  cases  of  private  nuisance,  so  called,  the  injured  person  may  proceed  by 
a  suit  to  have  it  abated.4 

Some  of  the  cases  hold  that  to  give  a  person  the  right  to  abate  a  private 
nuisance  he  must  have  suffered  injuries  to  such  an  extent  as  to  give  him  a 
right  of  action.  If  he  attempts  to  a'bate  it,  he  acts  at  his  peril,  and  to  justify 
his  act  the  thing  must  be  a  nuisance,  and  not  merely  an  apprehended 
nuisance.  He  must  not  go  beyond  what  is  necessary  to  protect  his  rights.5 

317.  Actions  for  Injuries  from  Overhanging  Trees. — To  recover  in  an 
action  against  an  adjoining  owner  who  allows  the  limbs  of  his  trees  to  over- 
Skinner  v.  Wilder,  38  Vt.  115.  *Tyler    on    Boundaries    327,    328;     3 
2  Lambert  v.   Dessey,   Ld.    Raym.  422,       Blackstone's  Comm.  5;  16  Amer.  &  Eng. 
467.                                                                             Ency.  Law  989,  990. 

8  Tyler  on  Boundaries  326,  237.  5  16  Amer.  &  Eng.  Ency.  Law  989. 


§  3!9-          OPERATIONS  PRELIMINARY    TO    CONSTRUCTION.  2O8 

hang  one's  lands  there  must  be  some  real  sensible  damage  shown,  as  where 
the  tree  is  noxious  or  poisonous  in  its  nature.1  The  fact  that  berry-bushes 
are  shaded  and  bear  less  fruit  than  others  that  are  more  exposed  will,  it  seems, 
not  be  sufficient  injury  to  sustain  an  action.  The  remedy  of  the  injured  party 
is  to  lop  the  branches.3 

318.  Trees  that  Overhang   a  Public  Way. — If  a  landowner  permit  his 
trees  to  overhang  a  highway  so  as  to  inconvenience  the  public,  it  is  a  commcn 
nuisance  and  the  branches  may  be   lopped  off  so  that  they  shall  not  annoy 
passers-by.     Any  one  may  justify  the  removal  of  such  a  common  nuisance, 
because  imjuries  of  this  kind,  which  obstruct  and  annoy  the  public  and  as  in- 
terrupt daily  convenience  and  usdl,  require  an  immediate  remedy  and  cannot 
wait  for  the  slow  machinery  of  the  courts.3     However,  a  contractor  who  has 
undertaken  a  public  improvement,   such  as  stringing  a  fire-alarm  telegraph  for 
a  municipal  corporation,  has  no  right  to  invade  the  premises  of  an  abutting 
owner  and   cut  off  limbs  that   overhang   the  sidewalk   and  which   did  not 
obstruct  the  use  of  the  sidewalk,  and  when  the  posts  and  wire  could  have  been 
located  elsewhere.4 

319.  Trees   Growing   in  Public  Ways. — As  hereinafter  explained,*  the 
title  to  the  soil  of  a  public  way  is  usually  in  the  abutting  owner,  and  he  is 
entitled  to  the  grass,  timber,  etc.,  that  may  grow  upon  its  surface.5     He  may 
plant  shade-trees  in  the  highway  if  the  public  uses  are  not  interfered  with  or 
the  way  obstructed.     If  any  person  unnecessarily  or  without  authority  inter- 
feres with  them  or  destroys  them,  such  person  will  be  liable  to  the  abutting 
owner  in  trespass.6     He  may  be  restrained  by  injunction  from  removing  them. 
The  fact  that  it  will  cost  less  to  build  a  bridge  upon  one  side  of  a  street  is 
not  sufficient  reason  to  warrant  a  road  commissioner  building  it  there  when 
it  will  destroy  the  abutting  owner's  hedge  and  trees.     Such  an  act  may  be 
enjoined."    The  right  of  public  officers  to  trim,  remove,  or  destroy  shade-trees 
on  highways  against  the  will  of  the  abutting  owner  depends  upon  the  neces- 
sity, which  is  a  question  for  the  jury.8     Such  removal  must  be  demanded  by 
the  wants  of  the  public  travel  and  convenience,  the  determination  of  which 
may  be  reviewed  and  controlled  by  the  court. 9    A  railroad  company,  however, 

1  Crowhurst  v.  Amersham  Burial  Bd.,       &  Norm.  424. 

4  Exch.  Div.  5.    But  see  Wilsons.  New-  *  Tissot   v.    Gt.    So.    Tel.    Co.,   39  La. 

berry,  L.  R.  7  Q.  B.  31.  Ann.  996;  Hodgins  v.   Toronto,  19  Out. 

2  Countryman  v.  Lighthill  (N.  Y.),  24       App.  537. 

Hun  405.  5  26  Amer.  &  Eng.  Ency.  Law  560. 

3  In  England  this  rule  has  not  been  fol-  6  Clark  v.  Dasso,  34  Mich.   86;  Graves 
lowed  in  cases  where  a  fence  belonging  v.  Shattuck,  35  N.  H.  257;  Weller  v.  Mc- 
to  a     railway     company      obstructed     a  Cormick,  52  N.  J.  Law  470;  People's  Ice 
thoroughfare.     It  was  held,  there,   that  Co.  v.  Steamer  Excelsior,  44  Mich.  233. 
the  public  had  no  right  to  demolish  it,  7Quintont/.  Burton,  61  Iowa  471;  Crim- 
but  that  a  mandamus  might  be  applied  son  v.  Deck,  84  Iowa  344. 

for,    or    some     other     remedy     sought.  8  Winter  v.  Peterson,  24  N.  J.  Law  524. 

Wyatt  v.  Gt.  W.  Ry.,  6  Best  &  Smith  709;  9  Bills  v.   Belknap,  36  Iowa  583.     But 

Ellis  v.  Lond.  &  S.  W.  Ry.  Co.,  2  Hurlst.       see  Chase  v.  Oshkosh,  81  Wis.  313. 

*  See  Sees.  441-446,  infra. 


2O9     PROPERTY  RIGHTS  DEFINED   BY  BOUNDARY  LINES.     §  32O. 

was  held  to  be  the  sole  judge  of  the  necessity  of  removing  ornamental  trees 
from  its  right  of  way.1  If  the  title  to  the  street  be  in  the  city,  trees  growing 
in  front  of  a  lot  may  be  removed  by  the  municipal  authorities  *  without  being 
liable  to  an  action.  Such  trees  may  be  removed  in  order  to  grade  the  street; 3 
and  the  city  may  grant  a  .telephone  company  a  license  to  clip  the  branches 
without  giving  the  abutting  owner  a  cause  for  complaint.4  Laws  passed  for 
the  protection  of  shade-trees  in  the  street  and  prohibiting  their  mutilation  or 
removal  have  been  held  not  to  include  the  owner.5 

320,  Measure  of  Damages  for  Destruction  of  Trees. — A  landowner 
may  obtain  damages  for  the  destruction  of  his  trees,  and  the  measure  of  such 
damages  is  usually  the  value  of  the  trees.  If  the  trees  are  specially  valuable  to 
an  estate,  as  ornamental,  shade,  growing,  or  fruit  trees,  then  the  measure  of 
damages  is  the  amount  that  the  value  of  the  land  has  been  diminished.  If 
the  land  is  also  injured,  such  injury  may  also  be  considered. 

It  does  not  matter  how  the  trees  are  destroyed,  whether  by  chopping  and 
sawing,  or  by  fire,  or  by  drainage,  or  by  chemical  dust  and  vapors,  or  by  oil 
and  gas  negligently  allowed  to  permeate  the  soil.6  The  measure  of  damages 
is  not  the  cost  of  replacing  the  trees,  and  the  care  and  labor  bestowed  on  the 
trees  destroyed ;  7  nor  is  it  the  value  of  the  trees  for  transplanting,  as  shade  and 
ornamental  trees,8  but  the  value  of  the  destroyed  trees  to- the,  owner  of  the 
land  at  the  date  of  their  destruction.9  In  cases  where  timber  trees  have 
been  cut  from  forests  the  measure  of  damages  is  usually  the  value  of  the 
trees  taken  or  destroyed,  and  nothing  more.  This  is  so  held  for  the  reason 
that  the  realty  is  not  damaged,  but  it  may  be  a  benefit  to  the  land  to 
have  trees  that  have  reached  maturity  cut  to  make  room  for  the  younger 
growth.10 

To  recover  full  damages  for  the  trees  cut  and  any  injury  that  the  land  has 
suffered  the  action  should  be  for  trespass  qu&re  clausum.  In  an  action  for 
trover,  recovery  will  be  limited  to  the  value  of  the  trees.  Replevin  may  also 
be  maintained  for  trees  severed  from  the  land,  and  the  landowner's  right  to 
pursue  his  property  is  unaffected  by  any  change  made  in  its  shape  or  form  if 
it  can  be  identified.  If  the  trees  were  cut  willfully  and  wantonly  no  allow- 
ance will  be  made  for  the  increased  value  of  the  timber,  which  resulted  from 
the  time,  labor,  and  skill  bestowed  upon  it.11 

1  Brainard  v.  Clapp  (Mass.),  10  Cush.  6.  7  Stoner  v.  Texas,  etc.,  R.  Co.,  45  La. 

2Gaylordz/.  King,  142  Mass.  495.  Ann.   115;    Whitbeck  v.   N.   Y.  Cent.   R. 

•Castleberry  v.  Atlanta,  74  Ga.  164.  Co.,  36  Barb.  (N.  Y.)  644. 

4  Hodgins    v.    Toronto,    19   Ont.   App.  8  Fremont,    etc.,    R.  Co.  v.    Crum,    30 
537.     But  see  Clay  v.  Postal  Tel.  Co.,  70  Neb.  70. 

Miss.  406;  Hoyt  v.  So.  N.  E.  Teleph.  Co.,  9  Mitchell  v.  Bellingsley,  17  Ala.  391. 

60  Conn.  385.  10  See  26  Amer.  &  Eng.  Ency.  Law  564. 

5  Lancaster  v.  Richardson,  4  Lans.  (N.  u  Heard  v.  James,  49  Miss.  236;  Single 
Y.)  136.       But  see  contra  in  Baker  v.  Nor-  v.  Schneider,    24  Wis.   299;   Hungerford 
mal,  81  111.  108,  an  ordinance  prohibiting    .  v.  Redford,  29  Wis.  345;  Herdic  v.  Young, 
the  hitching  of  horses  to  shade-trees.  35  Pa.  St.  176. 

6  26  Amer.  &  Eng.  Ency.  Law  563-567- 


§321.  OPERATIONS  PRELIMINARY   TO    CONSTRUCTION.  2IO 

321.  Rights  of  Landowner  to  Lateral  Support  for  his  Land  by  the  Land 
of  his  Neighbor.  —  At  common  law  every  person  in  making  earthworks  on, 
or  in,  his  own  land,  whether  by  surface  excavations  or  underground  pits,  is 
bound  so  to  work  as  not  to  cause  any  subsidence  of  the  original  soil  of  his 
neighbor.      In  other  words,    every  man   is  entitled  to  have    his  land  in  its 
natural   state  supported  by  the  adjoining  land   of  his  neighbor.      It  is  not  a 
question  whether  the  workings   are  skillfully  or  unskillfully  conducted;    the 
right  to  support  for  the  soil   itself  is  an  absolute  right  which  the  adjoining 
owner  is  not  entitled  to  infringe,  whether  by  skillful  workings  or  otherwise.1 

The  fact  that  the  land  of  two  neighbors  is  higher  than  the  adjoining  streei 
will  not  justify  either  in  removing  the  support  of  the  other  even  though  it  is 
made  for  the  purpose  of  bringing  the  land  to  the  level  of  the  street.^  Even 
when  adjoining  lands  are  upon  a  slope  or  hillside,  the  higher  land  is  still 
entitled  to  the  support  of  the  lower.  The  lower  owner  may  not  excavate  so 
near  to  the  boundary-line  as  when  two  lots  are  at  the  same  grade.3 

Therefore  when  it  was  alleged  that  defendant  was  possessed  of  a  certain 
sewer  which  discharged  into  and  caused  to  be  deposited  in  the  river  sewage 
which  it  became  the  city's  duty  to  remove,  to  prevent  it  from  interfering  with 
navigation,  and  that,  in  order  to  avoid  the  expense  of  frequent  removals,  and 
to  provide  a  basin  in  which  the  same  might  settle,  the  defendant  city  negli- 
gently dug  in  and  excavated  the  river-bed  around  and  near  the  foundations  of 
plaintiff's  building  in  such  manner  as  to  deprive  the  land  of  plaintiff  of  its 
natural  support,  and  to  cause  it  to  move  outward  into  the  excavation  made, 
carrying  with  it  the  piles  sunk  therein,  and  causing  them  to  incline  and  bulge 
outward,  it  was  held  that  a  good  cause  of  action  was  stated.4 

322.  Landowner  may  Make  Improvements  —  Owner  must  Give  Notice.  — 
The  common  law  guarantees  to  adjoiners  the  lateral  and  subjacent  support 
which  his  land  receives  from  the  adjoining  land,  but  this  right  is  subject  to 
the  right  of  the  adjoining  owner  to  make  excavations  for  construction  if  he 
use  ordinary  care  to  sustain  the  land  of  the  other  and  give  reasonable  previous 
notice  of  his  intention.5     One  who   undertakes   improvements    on    his  land 
which  endanger  the  structures  on  his  neighbor's  land  is  bound  to  give  noticet 
of  the  intended  improvements,  and  to  use  ordinary  care  and  skill   in  making 
them.6 

California,  Idaho,  Montana,  North  Dakota,  Oklahoma,  and  South  Dakota 
have  statutes  which  provide  that  each  coterminous  owner  is  entitled  to  the 


v.   Bower  (Minn.),   59  N.   W.  3Weir  z>.  Bell's  App.,  ST  Pa.  St.  203. 

Rep.    631;  Stimmel    v.    Brown    (Del.).    7  4Pomroy  v.   Granger   (R.    I.).    29  Atl. 

Houst.  219;  accord,   Spohn  v.  Dives  (Pa.  Rep.  690.  ' 

Sup.),  34  Atl.  Rep.  192;  Farrand  v.  Mar-  5  Sullivan  v.  Zeiner  (Cal.).  33  Pac.  Rep. 

shall,  21  Barb.  409,  reviewing  many  cases;  209;  Washburn  on   Easements  453;  Mas- 

Bohrer  v.  Dienhart   H.   Co.   (Ind.   App.),  sev  v.  Goyder,  4  C.  &  P.  161. 
45  N.  E.   Rep.    668;  Bouquois  v.   Monte-  6  Lasala'  v.   Holbrook  (N.   Y.).  4   Paige 

leone  (La.).  17  So.  Rep.  305.  169;   English    Cases  in    12  Amer.  &  Eng. 

2  Stimmel  v.  Brown,  7  Houst.  219.  Ency.  Law  938. 


211  PROPERTY  RIGHTS  DEFINED   BY  BOUNDARIES.          §  323. 

lateral  and  subjacent  support  which  his  land  received  from  the  adjoining  land, 
subject  to  the  right  of  the  owner  of  the  adjoining  land  to  make  proper  and 
useful  excavations  for  the  purposes  of  construction  by  using  ordinary  care  and 
skill  and  taking  reasonable  precautions  to  sustain  the  land  of  the  other,  and 
by  giving  previous  reasonable  notice  of  intention  to  make  excavation. 

In  South  Dakota,  where  the  statute  laws  require  an  adjoining  owner  to 
give  previous  reasonable  notice  of  his  intention  to  make  excavations  on  his 
land,  it  has  been  held  that  if  the  adjoining  owner  had  actual  knowledge  of  the 
intention  of  his  neighbor  to  make  an  excavation  on  his  land  in  time  to  allow 
him  to  protect  his  property,  such  knowledge  dispensed  with  a  formal  notice. 
The  question  might  arise  whether  or  not  an  application  and  issuing  of  a 
license  to  build  would  be  such  actual  notice  or  knowledge.1 

The  rule  that  a  person  excavating  with  due  care  on  his  own  soil  will  not 
be  liable  for  injuries  thereby  occasioned  to  an  adjoining  owner  has  no  applica- 
tion to  a  case  where  the  excavation  is  effected  by  blasting  out  rock  with  an 
explosive  so  powerful  as  to  break  the  windows,  loosen  the  walls,  and  injure 
the  furniture  of  adjoining  owners  by  atmospheric  concussion.2 

323.  Landowner  is  Entitled  to  Support  of  Land  Alone. — A  landowner  is 
entitled  to  lateral  support  from  a  lot  of  an  adjoining  owner  only  for  the  soil 
of  his  lot  in  a  natural  state,  and  not  for  a  building  placed  on  the  land.3  Such 
right  to  lateral  support  does  not  extend  to  the  support  of  any  additional 
weight  or  structures.4 

A  landowner  can  require  his  neighbor  to  furnish  only  so  much  lateral 
support  as  is  requisite  to  sustain  the  land  in  its  natural  undisturbed  state.  If 
an  adjoining  owner  excavates  nearer  the  boundary  than  such  a  limit,  he  is 
bound  to  furnish  support  to  the  land  by  artificial  means,  as  by  a  retaining 
wall.  If  such  support  is  furnished,  the  excavation  may  be  made  up  to  the 
dividing-line.  The  artificial  support  is  then  substituted  for  the  natural  sup- 
port of  the  soil,  and  it  may  be  of  any  material  provided  it  be  sufficient  for  the 
purpose  and  it  is  continued  so  as  to  maintain  the  land  in  its  proper  position.5 
It  is  not  sufficient  to  escape  liability  for  an  injury  caused  by  insufficient  sup- 
port to  show  that  the  support  furnished  was  reasonable  or  customary,  or  that 
the  excavations  were  made  with  care  and  skill.  A  support  must  prove 
sufficient  and  effectual.6 

"  If  a  man  builds  his  house  at  the  extremity  of  his  land,  he  does  not 
thereby  acquire  any  right  of  easement  for  support  or  otherwise  over  the  land 

*Novotny  v.  Danforth  (S.  D.),  68  N.  W.  409:  Novotny  v.  Danforth  (S.  D.),  68  N. 

Rep    749.  w-  ReP-  749;  Bohrer  v,  Dienhart  H.  Co. 

2  Morgan    z/.    Bowes    (Sup.),    17   N.    Y.  (Ind.  App.),  45  N.   E.  Rep.  668;  Goddard 

Supp.  22.  on  Easements  31;  Pantoh  v.  Holland,  17 

'Obert '  v.  Dunn  (Mo.),  41  S.  W.   Rep.  Johns.   92;  Humphrey  v.   Boyden,  12  Q. 

901.  B-  J39- 

4  Sullivan  v,  Zeiner  (Cal.),  33  Pac.  Rep.  5Snarr  v.  Granite  C.   &  S.  Co.,  I  Ont. 

209;  Thurston  v.  Hancock,  12  Mass.  221;  102;  Weir  v.  Bell's  App.,  81  Pa.  St.  203. 

Lasala  v.  Holbrook  (N.  Y.),  4  Pai^e  169;  6  Jones  on  Easements,  §  591. 
Ferrand  v.   Marshall     21    Barb.  (N.  Y.) 
• 


§324-          OPERATIONS  PRELIMINARY    TO    CONSTRUCTION.  212 

of  his  neighbor.  He  has  no  right  to  load  his  own  soil  so  as  to  make  it 
require  the  support  of  that  of  his  neighbor,  unless  he  has  some  grant  to  that 
effect." 

One  who  erects  a  building  on  the  line  of  his  own  land  is  himself  in  fault 
if  he  has  increased  the  lateral  pressure  so  as  to  prevent  the  adjoining  owner 
from  excavating  upon  his  own  land.  "  A  man  who  builds  a  house  adjoining 
his  neighbor's  land  should  foresee  the  probable  use  of  the  adjoining  land,  and 
by  convention  with  his  neighbor,  or  by  a  different  arrangement  of  his  house, 
secure  himself  against  further  interruption  and  inconvenience." 

An  injury  done  to  a  building  by  reason  of  an  excavation  upon  the  adjoin- 
ing land  made  with  proper  care  and  skill  is  damnum  absque  injuria.  "  While 
each  owner  may  build  upon  and  improve  his  own  estate  at  his  pleasure,  pro- 
vided he  does  not  infringe  upon  the  natural  right  of  his  neighbor,  no  one  can 
by  his  own  act  enlarge  the  liability  of  his  neighbor  by  an  interference  with 
this  natural  right.  If  a  man  is  not  content  to  enlarge  his  land  in  its  natural 
condition,  but  wishes  to  build  upon  or  improve  it,  he  must  either  make  an 
agreement  with  his  neighbor,  or  dig  his  foundations  so  deep,  or  take  such 
other  precautions  as  to  insure  the  stability  of  his  buildings  or  improvements, 
whatever  excavations  the  neighbor  may  afterwards  make  upon  his  own  land 
in  the  exercise  of  his  right,"  1 

When,  in  bringing  a  street  to  grade  by  rilling,  the  land  of  the  abutting 
owner  is  encumbered  by  the  embankments  so  that  the  fences  and  trees  are 
destroyed,  the  owner  may  recover  damages  from  the  city  unless  the  filling  was 
made  by  the  owner's  consent,  in  which  case  nothing  can  be  recovered  on  that 
account.2 

324.  Statutory  Laws  in  Large  Cities. — In  the  cities  of  New  York  and 
Brooklyn  (Greater  New  York)  the  common-law  rule  of  lateral  support  has 
been  modified.  In  1855  the  legislature  of  the  state  of  New  York  interposed 
to  regulate  the  exerci.se,  by  owners  of  land,  of  the  right  of  excavation,  and  to 
afford  to  owners  of  buildings  a  new  protection  against  injuries  from  excava- 
tions'on  adjoining  land.  By  this  act  (Chap.  6,  Laws  1855)  it  is  declared  that 
whenever  excavations  on  any  lot  in  New  York  or  Brooklyn  "shall  be  intended 
to  be  carried  to  the  depth  of  more  than  ten  feet  below  the  curb,  and  there 
shall  be  any  party  or  other  wall  wholly  or  partly  on  adjoining  land,  and 
standing  upon  or  near  the  boundary-lines  of  such  lot,  the  person  causing  such 
excavations  to  be  made,  if  afforded  the  necessary  license  to  enter  on  the 
adjoining  land,  and  not  otherwise,  shall,  at  all  times  from  the  commencement 
until  the  completion  of  such  excavation,  at  his  own  expense  preserve  the  wall 
from  injury,  and  so  support  the  same  by  a  proper  foundation  that  it  shall 
remain  as  stable  as  before  such  excavation  was  commenced." 

Under  this  act  it  has  been  held  that  in  order  to  subject  the  person  making 

1  Jones  on  Easements,  §  604.  2  Ludlow  v.  Troste  (Ky.),  45  S.  W..  Rep. 

661  [1898]. 


213  PROPERTY  RIGHTS  DEFINED   BY  BOUNDARIES.          §  $2' 

the  excavation  to  the  expense  of  protecting  the  adjoining  wall,  he  must  be 
afforded  the  necessary  license  to  enter  the  land;  that  the  license  must  be 
explicit  and  sufficient  to  protect  him,  and  it  should  be  given  by  all  persons 
who  would  be  injuriously  affected  by  such  acts.1  The  act,  however,  does  not 
require  the  owner  of  the  adjoining- land  to  tender  a  license  in  order  to  receive 
the  benefit  of  the  statute,  but  it  requires  the  party  causing  such  excavation  to 
be  made  to  request  permission  to  enter  and  proceed  with  the  excavation 
without  injuring  the  wall.  If  he  fails  so  to  do,  he  is  liable  for  the  damages.2 
The  adjoining  owner  is  only  required  to  grant  such  license  to  enter  his 
premises  when  requested.3 

Practically  the  same  law  was  embodied  in  the  Consolidation  Act,  Laws 
1882,  chap.  410,  sec.  474,  amended  by  Laws  1887,  chap.  566,  sec.  3,  which 
provide  that  where  an  excavation  on  any  land  is  to  be  made  to  the  depth  of 
more  than  ten  feet  below  the  curb,  and  there  shall  be  any  wall  on  adjoining 
land  and  standing  near  the  boundary,  the  person  making  such  excavation  ' '  if 
afforded  the  necessary  license  to  enter  on  the  adjoining  land,  and  not  other- 
wise," shall  preserve  such  wall  from  injury.  In  an  action  for  damages  result- 
ing from  a  violation  of  this  section,  the  court  refused  to  instruct  that  ' '  if  there 
were  any  defects  in  plaintiff's  building  before  defendant  began  to  build,  and 
that  while  defendants  were  endeavoring  to  support  this  building  these  defects 
became  enlarged  and  defendants  were  not  guilty  of  negligence,  plaintiff  cannot 
recover. ' ' 3 

This  law  does  not  apply  to  one  excavating  in  a  street  of  New  York  City 
under  a  contract  with  the  municipal  authorities.4 

After  the  license  to  enter  and  make  excavation  has  been  granted  and  the 
adjoining  owner  has  excavated  below  the  old  wall  and  has  inserted  needle- 
beams  to  sustain  it,  his  right  to  proceed  to  build  a  new  wall  to  the  extent 
that  the  old  wall  had  been  shored  up  may  not  be  denied  by  revoking  the 
license  to  enter  and  protect  the  wall.  The  adjoining  owner  may  enter  upon 
so  much  of  the  adjoining  lands  as  is  necessary  before  he  can  be  required  to 
remove  the  needle-beams  from  the  premises.  Whether  or  not  he  has  the  right 
to  proceed  and  shore  up  other  portions  of  the  adjoining  building  after  his 
license  to  enter  has  been  revoked  is  a  question.5 

Under  the  New  York  statute  law  it  has  been  held  that  the  duty  to  pre- 
serve the  wall  of  the  adjoiner's  building  from  injury  does  not  cease  with  the 
completion  of  the  excavation.  It  is  necessary  so  to  support  the  wall  that  it 
will  remain  as  stable  as  before.6  A  jury  is  justified  in  concluding  that  there 

1  Sherwood  v.  Seaman  (N.  Y.),  2  Bosw.  case,   note   on  duty   to.  protect   adjacent 
127  [1857!  wall,   and  an  amendment   of  statute  N. 

2  Dorrity    v.    Repp,    72    N.  Y.   307,  re-  Y.  Consolidation  Act,  §  473,  Laws  1892, 
versing  IT  Hun  374.  ch.  275,  p.  543- 

3  Cohen  v.    Simmons  (Sup.),   21  N.  Y.  5  Ketchum  v.  Newman,  116  N.  Y.  422. 
Supp    385  6  Bernheimer  v.  Kilpatrick,  6  N.  Y.  St, 

*Jenks  'v.    Kenny   (Super.),    19  N.   Y.       Rep.  858. 
Supp.  243,  28  Abb.  N.  C.   154-     See  this 


§  325-          OPERATIONS   PRELIMINARY    TO    CONSTRUCTION.  214 

was  direct  connection  between  the  injuries  to  a  wall  and  the  act  of  excavation 
where  the  evidence  shows  that  the  wall  had  stood  a  number  of  years  without 
settling,  and  that  when  a  deep  excavation  was  made  beside  it  cracks  appeared 
in  the  wall  and  it  settled  perceptibly  toward  the  excavation.1 

The  common-law  doctrine  of  lateral  support  has  been  abrogated  in  Ohio 
by  Ohio  Rev.  Stat.,  sec.  2677,  as  amended  May  9,  1894. a  The  depth  to 
which  an  owner  may  excavate  without  liability  for  damages  to  an  adjoining 
owner,  under  the  Ohio  statute  allowing  twelve  feet  of  excavation,  is  deter- 
mined, in  the  case  of  lots  extending  from  a  higher  to  a  lower  street,  by 
measuring  from  the  middle  of  a  slanting  line  drawn  from  the  curb  of  the 
higher  to  the  curb  of  the  lower  street.3  A  wall  built  along  the  side  of  a  lot 
by  its  owner  to  protect  it  against  an  adjoining  lot  lying  higher,  when  located 
entirely  on  the  lo.wer  lot  and  away  from  the  boundary-line  thereof,  may  be 
torn  down  by  its  owner  and  the  earth  between  the  wall  and  the  higher  lot 
removed  by  him.4 

325.  Easement  of  Extra  Support — How  Acquired. — If  any  structure  or 
extra  burden  is  placed  upon  the  soil,  the  right  of  support  must  be  acquired 
as  in  other  easements.  This  right  may  be  acquired  by  grant,  express  or 
implied,  but  it  is  doubtful  if  it  may  be  acquired  by  prescription.  All  the 
different  methods  of  obtaining  additional  support  are  reducible  to  one,  that 
by  grant,  which  may  be  express,  implied,  or  presumed.  When  the  owner 
of  land  acquires  by  grant  an  easement  of  support,  in  addition  to  that  to  which 
the  soil  is  subject  by  nature,  as  when  it  is  enlarged  by  the  additional  burden 
of  buildings  erected  upon  the  land,  if  the  owner  has  enjoyed  the  support  of 
the  buildings  or  additional  burdens  for  twenty  years,  and  both  parties  had 
knowledge  of  that  support,  it  is  sometimes  held  that  the  owner  acquires  a 
right  to  it  as  an  easement,  and  that  the  adjoining  owner  cannot  withdraw  the 
support  of  the  structure  without  being  liable  in  damages  for  injuries  that 
accrue.  In  such  a  case  the  grant  must  be  a  presumed  grant.  In  the  absence 
of  express  stipulations  the  grant  is  implied.  Rights  of  support  in  such  cases 
are  held  to  have  been  mutually  granted  and  reserved  from  the  original  owner 
and  first  grantee,  and  the  second  grantee  succeeds  to  such  owner's  reserved 
rights. 

"  It  is  assumed  as  settled  that  where  two  or  more  houses,  so  constructed 
as  to  require  mutual  support,  are  conveyed  to  different  owners,  or  where 
separate  portions  of  one  dwelling  become  vested  in  different  owners,  right  of 
support  as  incident  to  the  property  passes  by  the  conveyance  to  each  grantee 
unless  excluded  by  the  terms  of  the  grant.  Easements  of  this  description  are 
acquired  by  grant,  but  in  considering  the  conveyance  it  is  to  be  presumed 

1  Bernheimer  v.  Kilpatrick,  6  N.  Y.  St.  3Elshoff  v.  Deremo  (C.   P.),  3  Ohio  N. 
Rep.   858;   12   Amer.  &  Eng.    Ency.   Law       P.  273. 

939.  and  cases  cited.  *  Kilgour  v.  Wolf  (C.  P.),  4  Ohio  N.  P. 

2  Hall  v.  Kleeman  (C.  P.),  4  Ohio  N.  P.       183,  6  Ohio  Dec.  343. 
201,  6  Ohio  Dec.  323. 


215  PROPERTY  RIGHTS  DEFINED   BY  BOUNDARIES.          §  326. 

that  the  parties  intended  to  preserve  the  obviously  existing  relations  and 
dependencies  of  an  estate,  and  all  those  instances  necessary  to  the  present 
enjoyment  of  the  thing  granted  are  held  to  pass.  There  is  an  obligation  upon 
each  adjacent  proprietor  in  favor  of  the  other  beyond  what  is  implied  in  the 
maxim  which  requires  every  one  to  use  his  own  so  as  not  to  injure  his 
neighbor.  The  exclusive  dominion  of  each  is  so  far  qualified  that  neither  can 
take  away  the  support  of  the  other,  however  prudent  and  careful  on  his  part 
the  act  may  be."  1 

An  easement  for  the  support  of  a  building  can  only  be  acquired  by  an 
express  or  implied  grant  or  covenant.  "If,  at  the  time  of  the  severance  of  the 
land  from  that  of  the  adjoining  proprietor,  it  was  not  in  its  original  state,  but 
had  buildings  standing  on  it  up  to  the  dividing-line,  or  if  it  were  conveyed 
expressly  with  a  view  to  the  erection  of  such  buildings,  or  to  any  other  use  of 
it  which  might  render  increased  support  necessary,  there  would  then  be  an 
implied  grant  of  such  support  as  the  actual  state  or  the  contemplated  use  of 
the  land  would  require,  and  the  artificial  would  be  inseparable  from,  and  (as 
between  the  parties  to  the  contract)  would  be  a  mere  enlargement  of,  the 
natural  conditions.  It  is,  of  course,  incumbent  upon  the  party  who  claims 
the  right  of  support  for  buildings  to  prove  the  contract  or  grant  by  which  such 
right  was  acquired.  The  presumption  is  against  any  right  of  support  for 
buildings  or  other  structures  upon  the  land."  '* 

"  A  grant  made  expressly  for  the  purpose  of  building  a  house  creates  a 
legal  easement  over  the  adjoining  land  retained  by  the  grantor  coextensive 
with  the  known  uses  of  the  grant;  and  the  circumstances  that  the  grant  does 
not  notice  the  intention  of  building  is  immaterial  in  a  case  where  both  grantor 
and  grantee  are  aware  of  it,  affecting  at  most  the  grantee's  remedy,  not  his 
right,  relative  to  such  an  easement."  3 

326.  Easement  to  Extra  Support  Acquired  by  Prescription, — It  has 
frequently  been  held  that  "  a  right  to  lateral  support  by  adjoining  land  may 
be  acquired  by  twenty  years'  uninterrupted  enjoyment,  for  a  building  proved 
to  have  been  newly  built  or  altered  so  as  to  increase  the  lateral  pressure,  at 
the  beginning  of  that  time,  and  it  is  so  acquired  if  the  enjoyment  is  peaceable 
and  without  deception  in  concealment,  and  so  open  that  it  must  be  known 
that  some  support  is  being  enjoyed  by  the  building." 

1  Stevenson  v.  Wallace,  27  Gratt.   (Va.)  firming  29   L.   T.    7.     See   also   Rigby  v. 
77;  Pierce  v.   Dyer,   109  Mass.  374.     See  Bennett,  21  Ch.  D.  559;  s.  c.,  40  L.  T.  47; 
also  Story  v.  Od'in,  12  Mass.  157;  Cassel-  Murchie  v.   Black,   19  C.   B.  (N.   S.)  190; 
bery  v.  Ames,  13  Mo.  App.  575;  Charless  Caledonian  R.  Co.  v.  Sprot,  2   Macq.   H. 
v.     Rankin,     22    Mo.     566;    McGuire    v.  L.  Cas.  479;  Palmer  v.   Fleshees,   I  Sid. 
Grant.  I  Dutch.  (N.   J.)  356.  Eno  v.  Del  167;  Cox  v.  Matthews,  i  Vent.  237;  Brown 
Vecchio,   4  Duer   (N.    Y.)    53;    Lasala  v.  v.  Windsor,  I  Crompt.  &  J.  20. 
Holbrook,  4  Paige  (N.  Y.)  169;  Kieffer  v.  *  Dalton  v.   Angus,  6  App.   Cas.  (Eng.) 
Imhof,   26  Pa.   St.    438;    City  of   Quincy  74O,    reversing  3    Q.   B.    D.    85;    Hunt  v. 
v.    Jones,   76  111.    231;    United    States  v.  Peake,  I  Johns.  (Eng.)  705;  s.  c.,  29  L.  J. 
Appleton,  i  Sumn.  (U.  S.)  492.  Ch.    785;    Partridge    v.    Scott    (Eng.),    3 

2  Jones  on  Easements,  §605.  Mee.     &    W.     220;     Brown     v.   Windsor 

3  Robinson  v.  Grave,  27  L.   T.   248,  af-  (Eng.),  i  Crompt.  &  J.  20;  Hide  v.  Thorn- 


§327-  OPERATIONS  PRELIMINARY    TO    CONSTRUCTION,  2l6 

On  the  other  hand,  it  has  been  held;that  the  erection  and  maintenance  of 
a  structure  wholly  on  one's  own  land  for  a  long  period,  is  not  the  basis  of  a 
prescriptive  grant  to  have  it  supported  by  soil  of  the  adjoining  owner,  since 
no  injury  is  inflicted  upon  the  latter  by  which  he  could  base  an  action  to 
secure  the  removal  of  the  building. 1  It  is  difficult,  if  not  impossible,  to  apply 
the  doctrine  of  prescriptive  rights  to  instances  of  easements,  so  called,  when 
there  is  no  possession  of  anything  belonging  to  another,  no  encroachment 
upon  another's  right,  no  adverse  user,  in  fact  nothing  done  whatever  against 
which  another  can  complain  as  the  adjoining  owner,  and  for- which  no  action 
can  be  brought,  there  being  no  remedy  existing  whereby  to  prevent  such  a 
presumption  from  arising;  as,  for  instance,  in  the  case  of  windows  overlooking 
the  premises  of  the  adjacent  owner.  Such  a  proprietor  of  the  adjoining  land 
would  not  have  any  right  of  action  and  no  claim  for  damages  for  the  wrong 
done.  He  would  be  forced  to  build  a  structure  or  construct  a  wall  to 
obstruct  the  windows,  merely  to  show  that  he  is  lord  of  his  own  soil,  or  he 
might  forever  lose  the  right  to  the  full  use  of  his  property. 

Every  argument  advanced  against  an  easement  for  light  and  air  may  be 
applied  with  full  force  to  the  claim  of  right  by  the  owner  of  the  building 
erected  on  the  line  of  his  lot  to  the  lateral  support  of  the  adjacent  soil,  on  the 
ground  that  his  building  has  been  standing  there  for  a  given  number  of  years. 
Neither  in  the  case  of  a  window  nor  of  a  building  erected  up  to  the  dividing- 
line  has  the  owner  committed  an  act  against  which  his  neighbor  can  protest. 
He  has  not  touched  his  property,  nor  invaded  any  right,  nor  given  any  cause  of 
action.  He  has  a  right  to  use  or  build  on  his  lot  to  the  furthest  limit  of  his 
boundary.  He  has  only  done  this,  and  never  has  had  any  use  or  possession 
or  enjoyment  of  any  right,  corporeal  or  incorporeal,  belonging  to  another  to 
which  objection  could  be  made  in  any  form,  and  it  would  therefore  be  a  mis- 
use, as  well  as  an  abuse,  of  the  terms  "  license,"  "  grant,"  and  "acquies- 
cence "  to  say  that  he  had  acquired  a  right  by  means  thereof  from  the  owner 
of  the  adjacent  lot.2 

Neither  have  the  owners  of  ancient  buildings  which  adjoin  each  other  any 
reciprocal  easement  of  support  from  each  other's  buildings;  but  either  may 
remove  his  own  building  without  liability  for  damage  resulting  to  the  other, 
providing  he  gives  proper  notice  of  the  intended  removal,  and  uses  reasonable 
care  and  caution  not  to  injure  the  wall  of  the  remaining  building.3* 

327.  In  Making  Improvements  on  One's  Land  the  Owner  must  Exercise 
Care. — An  owner  of  land  who  excavates  to  a  depth  lower  than  the  foundation 

borough  (Eng.),  2  Car.  &  Kir.  250.     But  2  Watts  327,  460;  i  Amer.  Law  Review 

see  Kilgour  v.   Wolf   (Com.   PL),  4  Ohio  10;   Solomon  v.  Winters  Co.  (Eng.),  4  H. 

N.  P.  183,  an  American  case.  &  N.  585.     And  see  Gillmore  v.  Driscoll, 

Sullivan  v.  Zeiner  (Cal.),  33  Pac.  Rep.  122  Mass.    199;   Tunstal*  v.  Christian.  80 

209;  Kilgour  v.  Wolf  (Com.   PL),  4  Ohio  Va.  i;  Napier  v.  Bulwinkel  (S.  C.),  5  Rich. 

N.  P.  183.  311;  Jones  on  Easements,  §606. 

2  Trippe,  Justice,  in  Mitchell  v.  Mayor  3  Jones  on  Easements,  §  607. 
of  Rome,  49  Ga.  19;  Hoy  v.  Sterrett  (Pa. ), 

*  See  Sec.  335,  infra. 


2I/  PROPERTY  RIGHTS   DEFINED   BY  BOUNDARIES.          §  327. 

of  a  building  on  the  adjoining  lot,  having  failed  to  notify  the  owner  of  the 
building  to  protect  his  property,  will  be  liable  for  the  fall  of  the  foundation- 
wall  if  it  is  caused  by  failure  to  do  anything  which  ordinary  care  and  diligence 
in  such  operations  point  out  as  necessary  to  protect  it,  but  will  not  be  liable 
if  the  fall  is  caused  by  the  wall's  own  insufficiency.1  It  is  necessary  that  the 
house  and  its  foundations  should  have  been  properly  constructed.2  If  not  so 
built,  and  if,  by  reason  of  defective  materials  or  construction,  the  excavation 
on  adjacent  land  caused  it  to  fall,  the  owner  of  the  land  making  the  excava- 
tion will  not  be  liable.3  So  long  as  the  excavation  does  not  extend  beyond 
the  owner's  land,  and  is  not  negligently  or  unskillfully  made,  any  injury  to 
adjacent  owners  must  be  borne  by  such  owners.  The  excavation  must  be 
such  as  would  not  have  caused  any  appreciable  damage  to  the  adjacent  land 
in  its  natural  state. 

It  is  not  enough  merely  to  give  notice;  the  law  requires  the  landowner  to 
exercise  a  reasonable  degree  of  care  and  skill.  If  the  injury  result  from  the 
negligent,  unskillful,  and  improper  manner  of  doing  the  work  (making  the 
excavation)  the  owner  will  be  liable.4 

In  some  states  it  is  held  that  if  the  structure  has  been  erected  and  suffered 
to  remain  for  the  full  period  of  time  required  to  create  a  prescriptive  right  and 
to  enjoy  the  support  of  the  soil  of  the  adjacent  owner,  then  the  latter  may 
not  disturb  its  foundation  by  digging  within  his  own  lot  without  adopting 
reasonable  and  proper  precaution  to  prevent  any  injury  to  such  house.  These 
decisions  for  the  most  part  are  in  cases  where  the  two  adjoining  owners  have 
acquired  their  land  from  the  same  grantor,  or  where  both  lots  were  formerly 
owned  by  one  of  the  adjoining  owners.5 

Where  two  houses  have  been  built  together  in  such  a  manner  as  obviously 
to  require  mutual  support,  and  one  of  them  has  been  conveyed,  there  is  both 
an  implied  grant  and  an  implied  reservation  of  mutual  support  of  the  two 
houses,  so  that  the  owner  of  one  cannot  remove  it  without  protecting  the 
other  by  some  adequate  support.6  In  such  cases  it  is  presumed  that  the 
grantor  conveyed  to  the  adjoining  owners  the  right  of  lateral  support. 

1  Spohn  v.  Dives  (Pa.  Suo.),  34  Atl.  Rep.        G.  761 ;  Peyton  v.  Mayor  (Eng.),  9  Barn. 
192;  Clemens    v.   Speed  (Ky.),   19  S.  W.        &  Cress.   725;  Walters  v.  Pfeil  (Eng.),  I 
Rep.  *6o.     But    see    Cohen    v.  Simmons       Mood  &  Mlk.  362;  Massey  v.  Gayder,  4 

(Sup.),  21  N.  Y.  Supp.  385-  Car-  &  P-   l61'  Lasala  v'   H?lbxrT°°k  <N' 

2  Richart  v.  Scott  (Pal),  7  Watts  460.  Y.),  4  Paige  169;  Louisville  &  N.  R.  Co. 
3Richart   v.   Scott   (Pa.),   7  Watts  460.        v.    Bonhays   (Ky.),    21    S.   W.    Rep.   526; 

But  see  Cohen  v.  Simmons  (Sup.),  21   N.  Watson   Lodge  v.   Drake  (Ky.),  29  S.   W. 

Y.  Supp.  385.  Rep.  632:  Leavenworth  Lodge  v.   Byers 

4Dodd  v.  Holme,  I  A.  &  E.  493:  Foley  (Kan.),  38  Pac    Rep.  26r. 

v.  Wyeth,2  Allen  131:  Pantonr/.  Holland,  5  Lasala  v.    Holbrook  (N.  Y.),  4  Paige 

17  Johns.  92;  Charles  v.  Rankin,  22  Mo.  169. 

573:  Shrieve   v.  Stokes,  8  B.   Mon.  453;  'Jones  on   Easements.  §  605;  Webster 

McGuire  v.  Grant,  I  Dutch.  356:  Sullivan  v.  Stevens,  5  Duer  553;  Enor.  Del  Vecchio, 

v.  Zeiner  (CaU,  33  Pac.  Rep.  209.     And  4  Duer  53;  Richards  v.  Rose.  24  E.  L.  & 

see  Richardson  v.  V.  C.  R.  Co.,  25  Vt.  465,  Eq.  406;   s.  c.,  9  Exch.  218;  Solomon  v. 

471;  Washburn's   Easements,  ch.   4.   sec.  Vintner. Co.,  4  H.  &  N.   598. 
i;  Bradley  v.  Christ's  Hosp.,  4  Mann.  & 


§  328.  OPERATIONS   PRELIMINARY    TO    CONSTRUCTION.  2I& 

These  cases  must  be  distinguished  from  those  where  one  of  two  persons 
owning  two  adjoining  vacant  lots,  built  a  structure  upon  his  lot.  He  can 
acquire  no  rights  to  lateral  support  for  such  structure  in  the  lot  of  his 
neighbor  independent  of  a  grant,  nor  will  any  length  of  time  furnish  evidence 
of  such  a  grant. l 

328,  Notice  to  Neighbor  of  Excavation  should  be  Given. — A  landowner 
who  excavates  for  a  cellar  on  his  land,  using  ordinary  care  and  skill,  after  due 
notice  to  the  adjoining  owner,  is  not  liable  to  the  latter,  although  in  digging 
on  his  own  land  he  digs  so  near  the  foundation  of  such  adjoining  owner's 
house  as  to  cause  it  to  settle  or  fall.2     If  notice  of  a  contemplated  excavation 
has  been  given,  the  owner  making  the  excavation  is  bound  only  to  a  reason- 
able degree  of  care  and  skill.3     In  excavating  he  has  a  right  to  go  below  an 
adjacent  owner's  foundation-wall,  even  though  it  is  reasonably  certain  that 
such  foundation-wall  will  be  endangered  thereby;   and  after  giving  due  notice 
to  such  adjacent  owner,  the  person  excavating  is  chargeable  only  with  reason- 
able care;   it  being  the  duty  of  the  adjacent    owner  to  use   the  necessary 
appliances  to  protect  his  building.4     On  the  other  hand,  an  adjoining  owner 
will  not  be  restrained  from  placing  his  footing-stones  on  a  higher  level  than 
his  neighbor's.5 

Where  the  owner  or  tenant  of  a  building  has  knowledge  that  an  adjoining 
landowner  intends  and  is  proceeding  to  excavate  on  his  land,  he  must  take 
any  precautionary  measures  necessary  to  prevent  damage  to  the  building  by 
the  mere  making  of  such  excavation  in  an  ordinarily  careful  manner,  but  he 
need  not  guard  against  damages  resulting  from  negligence.6 

Where  one  of  two  adjoining  landowners  has  built  a  cellar-wall  on  the  line, 
leaving  some  rocks  projecting  over,  on  notice  that  the  other  is  to  excavate  he 
is  bound  to  shore  up  and  protect  his  property.  Not  having  done  so,  he 
cannot  recover  for  the  caving  thereof,  the  other  having  used  ordinary  care  in 
excavating  and  breaking  off  the  projecting  rocks.7 

329,  Remedy  for  Injury  to  Support, — The   remedy  for  violating  the  right 
to  lateral  support  is  in  most  cases  an  action  for  damages.     An  injunction  will 
be  granted  only  in  cases  where  a  serious  injury  is  imminent.8     An  injunction 
has  been  granted  where  the  plaintiff  had  built  a  retaining-wall  to  support  the 
defendant's  adjoining  lot  though  the  lot  was  built  upon  the  defendant's  land, 
he  having  agreed  to  furnish  the  grounds  if  the  plaintiff  would  build  a  wall.9 

A  person  in  possession  of  lands  is  entitled  to  an  injunction  to  prevent  any 

1  Washburn  on  Real  Property  (sd  ed.)  5  Graves  v.  Mattison  (Vt.),  32  Atl.  Rep. 

334;   Peyton  v.  Mayor  of  London,  9  B.  &  498. 

C.  725;  Napier  v.  Bulwinkle,  5  Rich.  311.  6  Behrer  v.  Dienhart  Harness  Co.  (Ind. 

2Obert  v.   Dunn  (Mo.),  41  S.  W.  Rep.  App.),  49  N.  E.  Rep.  296  [1898]. 

901.     See  Clemens  v.   Speed  (Ky.),  198.  7  Lapp  v.  Guttenkunst,  44  S.  W.  Rep. 

W.  Rep.  660.  964. 

3  Block  v.  Haseltine  (Ind.  App.),  29  N.  8  McMaugh  v.    Burke,    12    R.    I.   499; 
E.  Rep.  937.  Trowbridge  v.  True,  52  Conn.  190. 

4  City  of  Covington  v.  Geylor  (Ky.),  19  9  Cronsdale  v.  Lanigan  (Sup.),  13  N.  Y. 
S.  W.  Rep.  741.  Supp.  31  [1891]. 


219  PROPERTY  RIGHTS  DEFINED   BY  BOUNDARIES.          §  330. 

excavation  on  neighboring  land  which  will  cause  subsidence  or  destruction 
of  the  highway  in  front  of  his  premises,  or  take  away  the  lateral  support  of 
the  soil  in  its  natural  state,  without  the  burden  of  any  buildings  upon  it,  and 
also  upon  a  proper  showing  to  injunctive  relief  during  the  pendency  of  the 
action. l 

330.  Measure  of  Damages  for  Loss  of  Support,— The  measure  of  damages 
for  the  withdrawal  of  lateral  support  of  land  is  the  diminution  of  the  value  of 
the  land  caused  by  the  fall  of  the  soil.2  It  is  the  actual  damage  to  the  land 
by  the  loss  of  and  injury  to  the  soil  alone,  and  is  neither  the  cost  of  restoring 
the  land  to  its  former  condition  nor  its  diminished  market  value.3  The 
damages  have  been  confined  to  the  lot  alone,  independent  of  the  buildings 
thereon. 4 

In  Delaware,  where  the  owner  of  a  city  lot  excavated  along  the  division- 
line  for  the  purpose  of  reducing  the  level  of  his  lot  to  the  grade  of  the  street, 
causing  plaintiff's  lot  to  cave  in,  it  was  held  that  plaintiff  might  recover  the 
amount  required  to  restore  his  property  to  its  former  condition,  with  as  good 
means  of  lateral  support.5  The  measure  of  damages  is  not  the  depreciation 
in  value  by  reason  of  the  existence  of  the  excavation  of  the  defendant's  land, 
but  the  diminution  in  the  value  of  the  land  by  reason  of  the  falling,  caving,  or 
washing  of  the  soil  as  the  natural  result  of  removing  its  lateral  support.6  If 
the  plaintiff  would  recover  special  damages,  as  for  the  obstruction  of  drains  or 
destruction  of  a  fence,  such  injuries  must  be  specially  alleged,  and  their  value 
shown,  to  entitle  plaintiff  to  recover  therefor.5  The  fact  that  the  building 
had  been  condemned  by  the  building  inspector  does  not  prevent  plaintiff  from 
recovering  for  such  injury.7 

The  right  to  lateral  support  is  not  an  absolute  right  irrespective  of  the 
element  of  damages;  and  if  the  support  be  disturbed,  it  is  not  a  cause  of 
action  unless  there  be  appreciable  damages.  A  man  may  make  excavations 
upon  his  own  land  the  same  as  he  may  exercise  any  other  act  of  ownership, 
and  it  becomes  a  tort  only  when  it  injures  his  neighbor,  which  gives  rise  to  a 
cause  of  action.  There  is  no  right  of  action  unless  the  soil  is  disturbed,  even 
though  the  land  presents  an  unsightly  appearance  in  consequence  of  the 
excavation.8 

To  give  a  good  cause  of  action  it  is  only  necessary  to  show  a  neglect  to 
furnish  proper  support  to  the  land  so  as  to  prevent  its  caving  in.9  To  make 

1  Finegan  v.  Eckerson,  52  N.  Y.  Supp.        Rep.   809.      But  see  contra,  if  defendant 
993  [1898].  was  negligent,   Louisville  &  N.  R.  Co.  v. 

2  Shultz  v.  Bower  (Minn.),  59  N.  W.  Rep.       Bonhayo  (Ky.)  21  S.  W.  Rep.  526. 

631;  McGuire  v.  Grant  (N.  J.),  i  Dutch.  5  Stimmel  v.  Brown  (Del.),  7  Houst.  219. 

356;  McMaugh    v.   Burke,   12  R.  I.  499;  6Schultz  v.  Bower  (Minn.),  66  N.   W. 

Trowbridge  v.  True,  52  Conn.  190.  Rep.  139. 

3McGettigan    v.   Potts    (Pa.   Sup.),    24  7  Bonquois  v.  Monteleone  (La.),  17  So. 

Atl.  Rep.  198;  White  v.  Dresser,  135  Mass.  Rep.  305. 

150.  8  Williams  v.  Kenney,  14  Barb.  629. 

4Conboy   v.  Dickinson  (Cal.),  28  Pac.  9  Jones  on  Easements,  §588. 


§  331-          OPERATIONS  PRELIMINARY    TO    CONSTRUCTION.  22O 

a  case,  one  need  show  only  the  making  of  the  excavation,  and  the  subsequent 
injury  to  the  adjoining  land  by  reason  thereof.  It  is  not  necessary  to  show 
that  the  excavation  was  made  in  a  careless,  negligent,  or  unskillful  manner. 
The  action  ruling  in  such  cases  is  not  the  making  of  the  excavation,  but  the 
weakening  of  the  support  so' as  to  allow  the  neighbor's  land  to  fall.  It  is  an 
incident  to  the  right  of  property.  The  measure  of  damages  in  such  cases  is 
the  diminution  of  the  value  of  land  by  reason  of  the  falling  of  the  soil,  and  it 
is  immaterial  whether  this  falling  be  called  caving  or  washing.  It  is  the 
natural  and  approximate  result  of  taking  away  the  lateral  support. 1 

•Where  a  lot-owner,  in  excavating  on  his  lot,  injures  the  wall  of  the 
adjacent  owner  standing  three  inches  back  from  the  line,  such  adjacent  owner 
cannot  recover  for  injury  to  his  building  on  account  of  the  displacement  of 
the  three  inches  of  ground  unless  such  displacement  was  both  the  proximate 
and  independent  cause  of  the  damage;  and  if  such  displacement  was  with 
the  consent  of  the  owner,  he  cannot  recover  even  nominal  damages  therefor.2 
If  an  excavation  causes  the  soil  of  neighboring  land  to  give  way  on  account 
of  its  gravelly  and  sandy  condition  and  not  because  a  building  has  been 
located  upon  the  neighboring  land  four  and  one-half  feet  from  the  division- 
line,  the  party  making  the  excavation  is  liable  for  the  damage  to  the  land  and 
building  by  his  failure  to  protect  the  plaintiff's  building,  especially  when  it 
could  have  been  done  at  little  expense.  Even  if  the  inevitable  result  of  the 
willful  removal  of  the  soil  be  the  fall  of  the  house,  the  failure  of  plaintiff  to 
take  steps  to  avoid  the  injury  will  not  prevent  him  from  recovering  the  dam- 
ages to  land  and  building.3 

331.  What  Care  and  Diligence  must  be  Exercised. — A  rule  that  requires 
a  landowner  having  excavation  done  "to  use  such  care  and  caution  as  a 
prudent  and  experienced  man  in  such  work  would  have  exercised  if  he  had 
himself  been  the  owner  of  the  injured  building  "  was  held  wrong,  as  it  tended 
to  mislead.  One  who  was  owner  of  both  the  lots  might  very  prudently 
subject  himself  to  expense  and  inconvenience  for  the  protection  of  his  building 
that  could  not  justly  be  imposed  upon  his  neighbor.4  The  question  is,  "  Was 
there  actual  negligence  in  making  the  excavations?"  It  is  not  a  good 
defense  to  allege  "the  use  of  such  care  as  the  defendant's  builder  and  super- 
intendent, a  skillful  and  careful  person,  deemed  necessary."  5 

To  be  rendered  liable  the  landowner  must  have  failed  to  take  reasonable 
care  to  prevent  the  injury,  or  malice  must  be  shown.  An  allegation  that 
defendant  did  the  act  maliciously,  intending  to  injure  the  plaintiff,  was  held 
not  sufficient.6  The  fact  that  the  excavation  was  made  by  a  contractor  does 

1  Jones  on  Easements,  §  588.  v.  Canal  Bd.  (N.  Y.),  2  Sup.  Ct.  (T.  &C.) 

2  City  of  Covington  v.  Geylor(Ky.),  19       275  [1873]. 

S.  W.  Rep.  741.  5  Charles  v.  Rankin,  22  Mo.  566;  Austin 

3  Gildersleeve  v.  Hammond  (Mich.),  67       v.  Hudson  R.  R.,  25  N.  Y.  338,  346. 
N.  W.  Rep.  519-  6  Panton  v.  Holland,  17  Johns.  92. 

*  Charles  v.  Rankin,  22  Mo.  566;  People 


221  PROPERTY  RIGHTS  DEFINED   BY  BOUNDARIES.          §  333. 

not  relieve  the  owner  from  liability.1  The  general  rules  as  to  negligence  and 
what  constitutes  due  care  and  skill  apply.2 

The  distinction  between  injury  to  buildings  and  structures  erected  on  the 
land,  and  to  the  land  alone  must  be  kept  in  mind.  It  is  not  a  question  of 
negligence  in  making  an  excavation  when  the  natural  support  of  the  adjoin- 
ing lot  is  removed.  One  is  liable  without  regard  to  his  negligence.3 

A  complaint  for  damages  for  caving  in  of  plaintiff's  premises,  resulting 
from  defendant's  excavation  on  an  adjacent  lot,  which  sufficiently  avers  the 
negligence,  carelessness,  and  unskillful  workmanship  of  defendant,  is  sufficient 
though  it  fails  to  aver  that  plaintiff  had  no  notice  of  defendant's  intention  to 
excavate.4 

The  burden  of  proof  is  upon  the  owner  of  a  building  to  show  that  he  has 
exercised  reasonable  care  when  the  building  has  fallen  into  an  adjoining  street 
or  highway.  In  the  absence  of  such  proof  it  may  be  presumed  that  he  was 
negligent.5 

332.  Liability  for  Failure  to  Exercise  Care. — The  landowner  must  not 
leave  the  excavation  open  to  inclement  and  excessive  weather.     If  he  negH- 
gently  leaves  the  excavation   exposed,   so  that  rain-water  runs  into  it  and 
causes  the  land  of  an  adjoining  proprietor  to  give  way,  to  the  injury  of  the 
buildings  thereon,  he  is  liable  for  such  injuries  though  the  rain  may  have  been 
an  unusual  and  excessive  one;  for  it  would  not  have  run  into  the  excavation 
except  for  his  negligently  leaving  it  exposed.6 

When  one  of  two  adjoining  landowners,  on  excavating  for  a  cellar  up  to 
the  division-line,  on  which  the  other  had  built  a  cellar-wall,  undertakes,  upon 
compensation  from  the  other,  to  remove  the  parts  of  the  existing  wall  project- 
ing over  the  line,  he  is  responsible  for  injury  to  the  wall  arising  from  his 
failure  to  protect  it  as  persons  of  ordinary  care,  skill,  and  prudence  would 
have  done  under  the  same  circumstances.7  If  he  undertakes  to  protect  an 
adjacent  owner's  foundation-wall  by  underpinning  it,  he  is  bound  to  use 
reasonable  care;  and  whether  the  injury  resulted  from  want  of  such  care  or 
from  the  sandy  character  of  the  ground  is  a  question  for  the  jury.8 

333.  Precautions   to  be   Taken   to   Prevent   Injury. — It  must  not  be 
understood  from  the  law  of  lateral  support  that  a  landowner  may  not  improve 
his  land  by  sinking  foundations  and  making  excavations  therefor,   for  that 
would  be  almost  as  unjust  to  the  landowner  as  the  mischief  that  would  result 
to  his  neighbor  if  he  were  allowed  to  undermine  his  property.     The  possession 
of  land  would  be  of  little  benefit  to  the  owner  if  he  could  not  improve  it  and 
enjoy  the  benefits  of  such  improvements. 

1  Dorrity  v.  Rapp,  72  N.  Y.  307.  6Ulrick  v.  Dakota   Loan  &  Trust    Co. 

2 12  Amer.  &  Eng.  Ency.  Law  938.  I  (S.  D.),  51  N.  W.  Rep.  1023,  affirming  49 

3  Ludlow  v.  Hudson  Riv.  R.  Co.,  4  Hun  N.  W.  Rep.  1054. 

239,  6  Lans.  128.  7  Lapp  v.  Guttenkunst,   44  S.  W.  Rep. 

*  Block  v.  Haseltine  (Ind.  App.),  29  N.  964. 

E.  Rep.  937.  8City  of  Covington  v.  Geylor  (Ky.),  19 

5  Mullen  v.  St.  John,  57  N.  Y.  567.  S.  W.  Rep.  741. 


§334-          OPERATIONS  PRELIMINARY    TO    CONSTRUCTION.  222 

A  landowner  is  not  required  to  excavate  on  his  own  land  for  a  cellar  by 
piecemeal,  or  build  his  wall  in  sections,  to  prevent  a  building  on  the  adjoin- 
ing owner's  land  from  falling.1  But  if  he  has  told  the  adjoining  landowner 
that  the  proposed  excavation  for  a  building  would  be  made  in  the  usual 
manner  by  removing  the  dirt  "  in  sections  "  and  walling  up  one  section  before 
another  was  opened,  the  latter  is  entitled  to  rely  upon  such  representations, 
at  least  until  a  reasonable  opportunity  has  been  given  him  to  take  measures 
for  the  protection  of  his  building;  and  where,  after  one  section  has  been  built 
substantially  as  promised,  the  remoVal  in  sections  is  abandoned,  and  the  dirt 
is  all  taken  out  at  once,  thereby  occasioning  the  fall  of  the  building  only  a 
few  hours  afterwards,  it  cannot  be  said  as  a  matter  of  law  that  such  oppor- 
tunity to  protect  the  building  was  given.2 

The  right  of  an  adjoining  owner  to  lateral  support  may  be  asserted  as  well 
against  a  municipal  corporation  making  excavations  in  changing  the  grade  of 
a  street  as  against  private  individuals.3*  The  removal  by  a  railroad  company, 
in  excavating  for  its  road,  of  the  lateral  support  of  the  soil  adjoining  its  right 
of  way  is  a  taking  of  property,  and  the  right  can  only  be  acquired  by  pur- 
chase or  condemnation.4 

It  has  been  held  that  if  the  person  making  the  excavation  had  no  reason 
to  suppose  that  it  would  occasion  the  injury  which  arose  from  some  unfore- 
seen cause,  he  was  not  liable  for  the  damages.5 

334,  Right  of  Support  for  Surface  of  Ground, — Where  there  are  two  free- 
holds in  the  same  plot  of  ground,  one  in  the  surface  and  the  other  in  the 
mines  beneath  the  surface,  as  is  often  the  case,  the  one  who  excavates  for 
minerals  must  be  careful  to  supply  necessary  supports  for  the  surface-soil,  if 
his  excavation  endangers  its  natural  support.6  If  the  owner  of  the  surface 
has  had  a  house  standing  thereon  for  the  prescriptive  period,  the  one  excavat- 
ing for  minerals  is  bound  to  leave  or  provide  support  for  such  house  as  well 
as  the  soil.7  If  the  house  were  a  new  one,  would  he  also  be  bound  to  provide 
this  support  ?  These  cases  arise  most  frequently  in  coal-mining  districts.  It 
is  well  settled  that  when  a  party  has  conveyed  land  to  another,  reserving  to 
himself  the  right  to  remove  the  coal  underlying  the  land,  he  must  exercise 
ordinary  care  in  removing  the  coal.  If  such  care  requires  that  pillars  or 
ribs  of  coal  shall  be  left  in  order  to  support  the  surface  and  protect  the 
property  of  the  surface  owner,  their  removal  will  constitute  negligence,  and 
the  surface  owner  may  recover  damages  for  the  loss  caused  thereby.8  How- 
ever, the  lessees  of  a  partially  worked-out  coal-mine  are  not  liable  for  damages 

1  Obert  v.  Dunn  (Mo.),  41  S.W.  Rep.  901.  5  Shrieve  v.  Stokes,  8  B.  Mon.  453. 

2  Larson  v.   Metropolitan   St.    Ry.    Co.  6  English  cases  in  2  Washburn  on  Real 
(Mo.  Sup.),  19  S.  W.  Rep.  416.  Property  333. 

3  Stearns'    Ex'r    v.    City   of    Richmond  7  Rogers  v.  Taylor,  2  H.  &  M.  828. 
(Va.),  14  S.  E.  Rep.  847.  8  12  Amer.  &  Eng.  Ency.  Law  938,  and 

4  McCullough  v.  St.  Paul,  M.  &  M.  Ry.  American    cases;    Lord    v.    Carbon    Mfg- 
Co.  (Minn.),  53  N.  W.  Rep.  802.  Co.,  42  N.  J.  Eq.  157  [1886]. 

*  See  Sec    334,  infra. 


223  PROPERTY  RIGHTS  DEFINED  BY  BOUNDARIES.  §334- 

by  subsidence  caused  by  excavations  made  by  their  predecessors  prior  to  the 
date  of  their  lease,  though  they  took  no  measures  to  arrest  the  subsidence.1 

The  liability  of  a  city  or  town  for  taking  away  the  lateral  support  of  a 
public  street,  and  for  the  damages  resulting  thereby,  has  not  generally  been 
considered.  In  many  of  the  states,  notably  those  of  Minnesota,  Massachu- 
setts, Ohio,  Virginia,  Illinois,  Indiana,  Kentucky,  and  Pennsylvania,  cities  and 
towns  have  been  held  subject  to  the  same  liability  as  a  private  owner.  In 
Ohio  the  removing  of  lateral  support  by  a  city  or  town  is  regarded  as  the 
taking  of  land  for  public  purposes,  and  a  compensation  is  required  to  be  paid 
for  such  taking.  slf  the  land  has  been  improved,  and  the  weight  of  such 
improvements  has  not  conduced  to  the  falling  of  the  land,  the  cost  of  such 
improvements  may  be  recovered  from  the  city  or  town.* 

A  city  has  been  held  liable  for  the  settlement  of  a  structure  by  reason 
of  a  sewer,  built  by  the  city  under  a  street  in  "made  ground,"  it  being 
shown  that  the  injury  was  the  result  of  the  construction  of  the  sewer  and  not 
due  to  the  condition  of  the  ground.  No  recovery  would  have  been  had  if 
the  ground  upon  which  the  house  stood  was  soft  and  inadequate  to  sustain 
the  building  under  conditions  which  are  usual  in  the  conduct  of  necessary 
public  works  upon  highways.3  Where  a  sewer  commissioner  authorized  the 
construction  of  a  sewer  through  a  street,  and  the  excavations  therefor  induced 
a  flow  of  quicksand  from  beneath  the  surface  of  abutting  land,  causing  the 
building  thereon  to  settle  and  its  walls  to  crack,  it  was  held  that  the  c6m- 
missioner  was  liable  for  the  injury.  The  owner  of  the  buildings  did  not 
show  that  he  owned  the  street  where  the  sewer  was  constructed.  Had  he 
owned  the  fee  in  the  street,  it  was  said  that  the  taking  the  land  for  a  sewer 
imposed  no  additional  servitude  upon  the  highway,4  and  the  rights  of  the 
owner  were  not  invaded.  The  commissioner  had  no  right  to  take  the  soil 
(quicksand)  of  the  plaintiffs  in  land  which  they  had  not  taken  under  the 
statutes,  nor  to  withdraw  the  support  to  his  land  abutting  on  the  street.5 

A  city  has  been  held  liable  for  negligently  excavating  a  river-bottom 
around  and  near  to  piles  on  which  a  building  rested,  whereby  the  building 
was  undermined ;  especially  where  it  appeared  that  the  excavation  was  made 
for  the  purpose  of  saving  expense  of  frequent  removals  of  sand  and  sewage 
deposited  by  the  city  in  the  river  by  the  maintenance  of  a  sewer.  It  was  held 
that  excavation  was  not  a  legitimate  dredging  which  the  city  was  entitled  to 
do  for  the  improvement  of  its  harbor  in  the  interests  of  navigation.6 

The  vendor  of  land  adjoining  other  land  of  his  own,  under  which  are 
mines  and  minerals,  and  who  knows  at  the  time  of  the  sale  that  the  vendee  is 
about  to  erect  upon  the  land  so  purchased  substantial  buildings,  impliedly 

^reenwell  v.  Low  Beechburn  C.  Co.  *  Chelsea  Dye-house  v. Commonwealth, 
(Eng.),  2  Q.  B.  165  [1897].  164    Mass.    350;    Lincoln     v.    Common- 
Seating   v.   Cincinnati,    38    Ohio    St.  wealth,  164  Mass.  i. 
141.  6  Cabot  v.  Kingman,  136  Mass.  403- 
8Ladd  v.  Philadelphia,  171  Pa.  St.  485.  6  Pomroy  v.  Granger,  18  R.  I.  624. 


§  334-  OPERATIONS  PRELIMINARY   TO    CONSTRUCTION.  224 

covenants  that  he  will  not  use  the  land  retained,  or  permit  it  to  be  used,  in 
such  a  manner  as  to  derogate  from  his  grant ;  and  he  or  his  lessee  will  be 
enjoined  from  working  the  mines  within  euch  a  distance  from  the  grantee's 
land  as  would  be  reasonably  calculated  to  endanger  its  stability. l 

One  is  not  restricted  from  mining  near  his  neighbor's  land  because  the 
latter  has  erected  heavy  structures  near  the  division-line;  but  he  is  bound  to 
observe  proper  care  not  to  cause  the  adjoining  proprietor  more  damage  than 
is  fairly  incident  to  the  prosecution  of  the  work. 

Where,  in  conducting  mining  operations,  one  has  omitted  to  leave  the 
pillars  and  other  supports  necessary  to  insure  the  absolute  safety  of  the 
superincumbent  surface,  on  which  he  has  heavy  structures  and  operates 
machinery,  he  is  not  entitled  to  lateral  support  from  his  neighbor's  mines, 
and  cannot  enjoin  such  neighbor  from  mining  with  ordinary  care  up  to  the 
line  between  them,  where  the  material  is  such  that  a  perpendicular  wall  will 
sustain  its  own  weight,  and  the  natural  pressure  thereon,  by  the  power  of  its 
own  coherence.2 

If  one  builds  a  house  on  his  own  land  which  has  previously  been  excavated 
for  mining  purposes,  he  does  not  acquire  a  right  of  support  for  the  house 
from  the  adjoining  land  of  another.  Therefore  the  owner  of  the  adjoining 
land  is  not  liable  to  an  action  if  he  works  mines  under  his  own  land,  so  near 
its  boundary  as  to  cause  the  excavated  land  on  which  the  house  stands  to  sink, 
and  the  house  to  be  thereby  injured.  And  so  one  taking  coal  from  his 
own  land  is  not  liable  for  a  subsidence  caused  in  the  surface  of  another's 
land,  which  is  separated  from  the  colliery  by  intermediate  land  from  under 
which  the  coal  had  been  worked  out  some  years  before  by  a  third  party, 
it  being  admitted  that  if  the  intermediate  land  had  been  in  its  natural  state 
no  injury  would  have  been  caused  by  the  subsequent  excavation  of  the  coal. 
One  has  a  right  to  work  a  mine  up  to  the  limit  of  his  own  land,  and  this 
right  cannot  be  diminished  by  any  act  done  by  the  owner  of  the  adjoining 
land,  or  by  the  third  person,  for  whose  action  the  owner  of  the  land  is  not 
responsible.3 

The  fact  that  a  railroad  company  has  bought  and  paid  for  its  right  of  way 
does  not  relieve  it  from  paying  for  an  upheaval  of  adjoining  lands  caused  by 
the  construction  of  the  road  in  a  marshy  place,  and  which  has  spread  out 
beyond  the  limit  of  the  right  of  way.4 

The  support  of  one's  land  may  be  the  subject  of  an  agreement  wherein 
for  a  consideration  the  removal  of  support  may  be  consented  to.  A  grantor 
may  reserve  the  right  to  enter  upon  a  certain  part  of  the  land,  to  dig  and  take 
clay  and  sand  for  making  brick,  or  to  work  minerals.  In  such  case  he  may 
remove  the  lateral  support  of  the  land  granted,  by  digging  away  the  part 
designated  in  the  exercise  of  the  right  reserved.5 

1  Jones  on  Easements,  §  605.  4  Roushlange  v.  Chicago,  etc.,  R.  Co. 

2  Jones  on  Easements,  §  608.  (Ind.).  I?  N.  E.  Rep.  198   [1888]. 

8  Jones  on  Easements,  §  609.  5  Ryckman  v.  Gillis,  57  N.  Y.  68. 


225  PROPERTY  RIGHTS  DEFINED   BY  BOUNDARIES.          §  336. 

When  land  had  been  granted  for  building  purposes,  and  the  right  to 
remove  the  minerals  beneath  had  been  reserved,  but  without  the  right  to  enter 
upon  the  surface,  and  it  was  provided  that  compensation  should  be  made  for 
all  damages  suffered  from  structures  on  the  said  plot  by  the  grantor,  it  was 
held  that  he  was  entitled  to  take  the  minerals  without  leaving  any  support, 
subject  only  to  compensation  for  damage  done. 

335.  Lateral   Support   of  a   Structure.  —  When   a   boundary-line    runs 
through  a  building  or  structure,  cutting  it  in  two,  it  seems  that  neither  party 
can  cut  off  that  portion  of  the  building  or  barn  which  is  upon  his  property 
and  leave  the  rest  of  the  structure  without  support  or  shelter.1     But  when 
plaintiff  and  defendant  respectively  owned  adjoining  lots,  obtained  from  the 
same  original  source  of  title,  on  which  there  were  three  houses,  the  middle 
one  of  which  was  about  half  on  one  side  and  half  on  the  other  side  of  the 
division-line,  it  was  held  that  defendant  had  a  right,  where  the  house  had 
been  cut  through  on  the  division-line,  to  remove  his  half,  since  the  use  of  the 
building  was  not  a  common  servitude  for  both  lots,  and  that  the  user  of  the 
water-pipes,  etc.,  fell  with  a  separation  of  the  estate  in  the  middle  house.2 

336.  Encroachments  or  Projections  upon  Adjoining  Land.* — A  person 
who  builds  either  above  or  below  his  soil,  adjacent  to  his  neighbor's  property, 
must  build  in  a  perpendicular  line.     He  may  build  as  high  as  he  pleases, 
although  it  may  occasion  inconvenience  by  shutting  out  light  and  air,  pro- 
vided the  building  does  not  cause  damage.3 

A  landowner  has  a  good  cause  of  action  in  ejectment  against  the  owner 
of  an  adjoining  lot  who  has  erected,  with  notice,  buildings  whose  eaves  pro- 
ject several  inches  over  and  upon  the  landowner's  lot.4  One  who,  by  mis- 
take of  the  district  surveyor  in  locating  the  line  of  his  lot,  constructs  the 
foundation-wall  for  a  building  so  that  it  projects  for  an  inch  and  a  fraction, 
underground,  onto  an  adjoining  lot,  may  be  compelled  to  remove  it  so  that 
it  shall  not  encroach.5  If  the  foundation  be  wholly  upon  the  lot  of  the 
owner,  but  a  part  of  the  wall  or  building  overhangs  an  adjoining  lot,  it  may 
be  enjoined  and  its  removal  required  for  so  much  as  it  overhangs.6 

Injunction  will  lie  to  compel  removal  of  the  wall  of  a  building  placed  by- 
defendant  on  plaintiff's  side  of  a  boundary,  there  being  no  adequate  and  plain 
remedy  at  law.  Injunction  to  compel  removal  of  a  wall  will  be  made  per- 
petual, without  resort  to  law  to  determine  title,  where  the  questions  of  title 
and  right  of  possession  are  only  incident  to  the  question  of  boundary.7 

1  Adams   v.    Marshall,    138    Mass.    338  v.  Colgen  (N.  J.),  9  Atl.  Rep.  105  [1887]. 

[1885].  5pile    v-   Pedrick   (Pa.    Sup.),    31    Atl. 

2Whyte    v.     Builders'   League,    52    N.  Rep.  647. 

Y.  Supp.   65,  23  Misc.  Rep.  385.  6  Lyle  v.  Little  (Sup.),  33  N.Y.  Sup.  8; 

'Oldstein    v.    Firemen's    Bldg.    Assn.  Harrington  v.   McCarthy  (Mass.),  48   N. 

(La.),  10  So.  Rep.  928,  E.  Rep.  287  [1897]. 

*Lepreel    v.   Kleinschmidt  (N.  Y.),     19  T  Norton   v.    Elwert   (Oreg.),    41    Pac. 

N.  E.  Rep.  812  [1889].    And  see  Anglecey  Rep.  926. 

*  See  Sees.  455,  608,  infra. 


§  336-          OPERATIONS  PRELIMINARY   TO    CONSTRUCTION.  226 

The  adjoining  owner,  by  utilizing  the  wall  in  the  construction  of  a  build- 
ing on  his  land  may  lose  his  right  to  demand  a  demolition  of  the  wall.1 

Where,  however,  only  an  occasional  stone  of  the  foundation  of  a  house 
projected  a  short  distance  into  plaintiff's  land  below  the  surface,  and  this 
encroachment  was  unintentional,  and  the  defendant,  on  discovering  it,  after 
the  house  was  nearly  completed,  "  offered  to  pay  plaintiff  any  sum  he  might 
claim,"  but  plaintiff  refused  anything  but  removal,  and  no  appreciable  damage 
resulted  to  plaintiff,  while  removing  of  the  projecting  portions  of  the  stones 
might  be  difficult  and-  expensive,  it  was  held  that  the  plaintiff  would  be  left 
to  his  remedy  at  law.2  And  where  a  wooden  building  encroached  six  inches 
on  a  private  alley  for'  more  than  twenty  years,  and  the  owner  attempted 
to  veneer  it  with  brick,  whereby  it  would  encroach  three  inches  more,  and 
it  did  not  appear  that  the  encroachment  would  materially  injure  the  right 
of  way,  it  was  held  that  the  adjacent  owner  was  not  entitled  to  remedy  by 
injunction.3 

Where  the  encroachment  of  a  building  on  premises  agreed  to  be  con- 
veyed in  an  executory  contract  is  not  more  than  one-fourth  of  an  inch 
upon  the  adjacent  lot,  it  does  not  warrant  a  denial  to  the  vendor  of  specific 
performance.4 

If  defendant's  building  encroach  upon  the  plaintiff's  land  so  as  to  injure 
the  plaintiff's  property,  the  owner  who  maintains  these  encroaching  walls  is 
guilty  of  a  trespass  and  is  responsible  for  any  injury  sustained  thereby.  The 
fact  that  at  the  time  of  the  encroachment  the  defendant's  property  was  in 
possession  of  a  tenant  does  not  relieve  the  defendant. from  liability.5 

Exemplary  damages  should  not  be  allowed  for  refusal  of  defendant  to 
remove  his  building,  overhanging  plaintiff's  lot,  under  a  mistaken  belief  that 
plaintiff  was  responsible  for  the  projection  of  the  building,  and  that  he  was 
not  obliged  to  remove  it,  though  there  was  considerable  delay  after  decree 
commanding  him  to  remedy  it;  this  being  partly  due  to  efforts  to  devise 
means  to  do  the  work  without  taking  down  the  building.6 

A  lease  of  a  building  has  been  held  to  convey  the  land  under  the  eaves 
.and  projections  of  the  building  if  that  land  is  owned  by  the  lessor.7 

When  one  of  two  adjoining  lots  has  a  house  upon  it  with  the  corners  pro- 
jecting over  the  other  lot,  and  the  former  is  sold  to  a  second  person,  the 
purchaser  of  the  other  lot  cannot  question  the  right  to  maintain  the  corners 
even  though  the  first  lot  has  come  back  to  the  original  owner.8 

Where  adjoining  owners  erect  buildings  with  reference  to  the  supposed 

1  Monteleone  v,  Harding  (La.),  23  So.  5  Hefferberth  v.  Meyers  (N.  Y.),  —  App. 
Rep   990.  Div.  — [1896]. 

2  Harrington  v.  McCarthy  (Mass.),  48  6  Burruss  v.  Hines  (Va.),  26  S.  E.  Rep 
N.  E    Rep.  287  [1897].  875. 

3  Hall    v.    Rood,    40   Mich.    46    [1879],  7  Sherman  v.  Williams,  113  Mass.  481. 
citing  48  Mich.  368  and 65  Mich.  84.                      8  Grace  M.  E.  Ch.  v.  Dobbins  (Pa.),  25 

4  Katz  v.  Kaiser,  10  App.  Div.   137,41  Atl.  Rep.  1120. 
N.  Y.  Supp.  776. 


PROPERTY  RIGHTS  DEFINED    BY  BOUNDARIES.          §  338. 

boundary-line  between  them,  there  is  a  practical  location  of  such  boundary 
which  may  bind  the  parties.1* 

Where  a  lot-owner  has  built  over  the  line  on  the  adjoining  lot  by  mistake, 
and  has  had  open,  continuous,  and  exclusive  possession  for  the  statutory 
period  with  intention  to  hold  adversely,  it  is  adverse  possession. *f 

337.  What  Constitutes  a  Party-wall.— The  original  division-wall  erected 
at  the  time  of  building  two  houses  by  the  owner  of  either  is  not  a  party-wall, 
and  does  not  become  such  by  a  sale  of  the  houses  to  different  parties.3     A 
brick  wall  which  is  used  in  common,  as  the  wall  of  two  adjacent  properties 
in  a  city,  is  a  party-wall  if  erected   partly  on  the  soil  of  each  and  so  used  for 
many  years  without  question  /Or  complaint  by  either.4     A  division-wall,  built 
entirely  on  the  land  of  one  person,  may  by  agreement,  actual  or  presumed, 
become  a  party-wall.5     If  a  neighbor  has  by  mistake  extended  the  founda- 
tion of  a  wall  slightly  onto  an  adjoining  lot,  it  does  not  thereby  become  a 
party-wall. 6 

338.  Property   in   Party-walls.— When   a   party-wall   has   been  erected 
upon  the  division-line  between  two  states,  the  adjoining  landowner  owns  that 
part  of  the  wall  which  stands  upon  his  premises  unless  there  is  something  to 
the  contrary  in  the  contract  under  which  the  building  is  erected.      The  fact 
that  the  contract  provides  that  before  the  adjacent  owner  shall  make  any  use 
of  the  wall  he  must  pay  to  the  party  erecting  it  one-half  the  value  thereof 
does  not  alter  the  case.7 

It  has  also  been  held  not  to  be  a  use  of  a  party-wall  where  one  relies  upon 
it  for  protection,  and  so  constructs  his  own  wall  of  such  materials  as  are 
generally  used  for  outside  work,  if  the  wall  be  not  attached  ^to  the  party-wall 
and  does  not  depend  upon  it  for  its  support.8 

An  adjoining  owner  who  has  used  a  wall  resting  wholly  on  the  land  of  his 
neighbor  for  the  support  of  his  building  for  the  full  statutory  period  acquires 
an  easement  in  the  wall  which  cannot  be  interfered  with  by  the  neighbor  to 
the  extent  of  cutting  off  the  floor-beams  on  a  portion  of  the  building,  even 
though  it  be  done  for  the  purpose  of  straightening  the  wall.9  The  right  to 
such  an  easement  is  limited  to  the  extent  of  the  ancient  user.  The  owner 
has  a  right  to  use  it  in  any  way  that  will  not  conflict  with  that  right.10  He 

1  Ford  v.  Schlosser  (Com.  PI.  N.  Y.),  34  6  Pile   v.   Pedrick   (Pa.    Sup.),   31    Atl. 

N.  Y.  Supp.  12.    But  see  Griffiths  v.  Mor-  Rep.  646. 

risen  (N.  Y.),  12  N.  E.  Rep.  580  [1887].  7  Mickel  v.  York,  66  111.  App.  464. 

« Wilson    v.    Hunter   (Ark.),    28    S.  W.  8  Sheldon  Bank  v.  Royce  (Iowa),  50  N. 

Rep.  419.  W.  Rep.  986 — tinder  Iowa  Code,  £  2019, 

3  Moore   v.  Shoemaker  (D.  C.  App.),  25  distinguishing  Molony  v.  Dixon,  65  Iowa 
Wash.  L.  Rep.  72,  29  Chicago  Leg.  News  136, 

207.  *  Barry  v.  Edlavicht  (Md.),  35  Atl.  Rep. 

4  Kelly  v.  Taylor  (La.),  10  So.  Rep.  255.       170. 

5Dorsey  v.  Habersack  (Md.),   35   Atl.  10 Pearsall  v.  Westcott,  51  N.  Y.  Supp. 

Rep.    96;    Mott   v.    Oppenheimer  (N.  Y.       663  [1898]. 
App.),  31  N.  E.  Rep.  1097. 

*  See  Sees.  491-510,  infra.  \  See  Sees.  511-540  and  682-691,  infra. 


§  339'  OPERATIONS  PRELIMINARY    TO    CONSTRUCTION.  22% 

cannot  complain  that  the  neighbor  has  built  his 'wall  higher  and  placed 
windows  therein,  since  his  right  to  thd  use  of  the  wall  was  limited  to  the  use 
he  enjoyed  during  the  period  of  prescription.1 

Such  an  easement  in  a  party-wall  does  not  deprive  the  original  owner  of 
the  possession  of  it,  although  the  adjoining  o-wfler  be  entitled  to  the  use  of  the 
wall.2  Such  an  easement  becomes  appurtenant  to  the  adjoining  landowner's 
estate,  and  passes  to  his  grantees.3 

When  a  party  has  acquired  the  right  to  use  a  party-wall  by  complying 
with  the  statutes  in  regard  thereto,  the  owner  of  the  building  already  erected 
cannot  complain  that  his  neighbor's  use  of  the  wall  will  change  a  portion  of 
the  front  of  his  building,  and  mar  its  appearance,  if  the  use  is  exercised  in  a 
proper  manner.4 

339.  Destruction  or  Demolition  of  Party-walls. — Where  two  houses  are 
built  together,  the  right  to  mutual  lateral  support  exists  only  so  long  as  the 
wall  continues  to  be  sufficient  for  the  purpose  and  the  buildings  remain  in  a 
condition  to  require  support.     If  the  buildings  be  torn  down  and  be  not  at 
once  restored,  the  parties  may  assert  their  unqualified  ownership  and  title  to 
the  division-line.5 

When  the  owner  of  several  houses  so  built  that  they  require  mutual 
support  conveys  one  of  them,  he  does  not  thereby  lose  the  lateral  support  of 
it,  the  legal  presumption  being  that  the  owner  reserves  to  himself  such  right 
and  at  the  same  time  grants  to  the  new  owner  a  like  right.6 

Any  easement  of  an  adjoining  lot-owner  created  by  a  party-wall  ceases 
when  the  wall  becomes  unfit  for  use  either  from  age  or  accident.7  A  pro- 
vision that  the  rights  of  the  parties  shall  continue  "so  long  as  the  wall  shall 
stand  "  does  not  mean  so  long  as  any  part  of  the  wall  itself  shall  remain,  but 
so  long  as  the  wall  shall  remain  fit  for  use  as  a  party-wall.8 

A  beam-right  in  favor  of  adjoining  premises,  to  continue  until  the  wall  of 
the  servient  premises  is  destroyed  in  any  manner  or  torn  down  for  the  purpose 
of  rebuilding,  is  an  encumbrance  upon  the  premises.9 

340.  Right  to  Build  Party-wall  Higher.—  A  joint  owner  of  a  party-wall 
has  a  right  to  increase  its  height,  but  in  so  doing  is  liable  for  any  injury  to 
the  adjoining  building,  even  though  the  addition  is  being  built  by  a  con- 
tractor, and  the  damage  results  from  a  wind-storm  which  causes  the  wall  to 
fall.10     An  agreement  whereby  the  right  "to  place  joists  to  the  depth  of  four 
inches,  and  to  otherwise  build  into  and  against  "  the  wall  of  plaintiff's  house, 
"and  to  otherwise  use  the  same  as  a  party-  or  division-wall,"  is  purchased, 

1  Barry  v.  Edlavicht,  supra.  7  Odd  Fellows'  Hall  v.  Hegele  (Oreg.), 

2  Pearsall  v.  Westcott,  supra.  32  Pac.  Rep.  679. 

3  Barry  v.  Edlavicht,  supra.  8Odd  Fellows'  Hall  v.  Hegele,  supra. 

4  Freeman  z/.  Hairwig  (Iowa),  51  N.  W.  9Schaeffer  v.   Miehling  (Super.),  34  N. 
Rep.  169.  Y.  Supp.  693. 

6  Moore  v.  Shoemaker,  10   App.  D.  C.  10  Brooks  v.  Curtis,  50  N.  Y.  639;  Negus 

6  [1897].  v.  Becker  (Sup.),  22  N.  Y.  Supp.  986. 

6 Moore  v.  Shoemaker,  supra. 


229  PROPERTY  RIGHTS  DEFINED   BY  BOUNDARIES.          §  341. 

includes  the  right  to  increase  the  height  of  said  wall. l  When  a  person  has 
the  right  to  build  the  wall  higher  although  it  may  shut  off  the  view  from  the 
other  party's  windows  and  lessen  the  light  coming  thereto,  he  may  do  the 
same  thing  by  the  erection  of  a  screen  upon  such  wall,  without  entitling  the 
other  party  to  relief  by  injunction.2 

When  one  of  the  joint  owners  has  built  the  party-wall  higher,  it  seems  he 
cannot  recover  from  his  neighbor  who  uses  such  addition  for  the  support  of 
his  house  when  he  also  builds  higher,  unless  there  is  an  express  agreement  to 
that  effect.3 

Under  an  agreement  for  the  construction  of  a  wall  in  common  by  joint 
property  owners  to  the  height  of  three  stories  on  the  land  of  one,  there  is  no 
presumption  that  the  other  may,  of  his  own  motion  and  for  his  own  benefit, 
extend  said  wall  upward  another  story  without  regard  to  a  threatened  ease- 
ment ripening  therein,  or  of  an  injury  likely  to  result  to  the  property 
adjacent.4 

Where  it  was  mutually  agreed  that  a  party -wall  should  be  built  to  a  height 
of  one  story,  and  that  either  party  could  add  to  the  wall  in  height,  doing  work 
from  his  own  side,  and  the  party  who  did  not  build  the  wall,  wishing  to  go 
higher,  built  on  top  of  such  wall  but  on  his  own  side  of  the  line,  it  was  held 
that  such  addition  was  not  necessarily  a  party-wall.5  A  covenant  that  a 
building  shall  not  be  erected  above  a  certain  height  is  the  grant  of  an  ease- 
ment which  can  be  enforced  by  injunction  pioceedings  instituted  by  adjoining 
property  owners.6 

341.  Erection  of  Wall  or  Fence  to  Obstruct  Light  and  View. — A  lot- 
owner  has  the  legal  right  to  erect  and  maintain  a  board  fence  on  his  lot  as 
high  as  he  will,  even  to  the  roof  of  the  house  on  the  adjoining  lot  standing 
on  the  division-line,  and  even  though  the  fence  is  buiH  for  the  sole  purpose  of 
shutting  light  and  air  from  the  windows  of  the  house,  to  the  injury  of  its 
owner.7  An  owner  of  a  house  cannot  enjoin  his  neighbor  from  erecting  such 
a  fence  on  the  boundary-line  so  as  to  shut  off  the  light  and  air.8  He  has  no 
remedy  even  though  he  has  enjoyed  the  light  and  air  for  more  than  fifty 
years. 9 

A  servitude  of  light  and  air  through  windows  in  a  wall  cannot  be  acquired 
by  prescription  against  the  owner  of  the  adjoining  lot,  at  least  not  until 


1  Dorsey*  v.  Habersack  (Md.),  35    All.  Rep.  195. 

Rep.  96.  7  Letts  v.  Kessler  (Ohio),  42  N.  E.  Rep. 

2Cagney  v.    Sweet,    67    111.    App.    641  765;  Levy   v.  Samuel  (Super.),   23  N.  Y. 

[1896].  Supp.  825. 

'Allen  v.  Evans  (Mass.),  37  N.  E.  Rep.  8  Triplett   v.    Jackson  (Kan.),  48    Pac. 

57I.  Rep.  931;  Ladd  v.  Flynn(Mich.),  51  N.W. 

*Calmelet   v.    Sichl    (Neb.),  67  N.  W.  Rep.  203;    contra,    Kirkwood  v.  Finegan 

Rep.  467.  (Mich.),  55  N.  W.  Rep.  457. 

5  Palmer  v.  Evangelico  Soc.  (Mass.),  43  9  Kanabe  v.  Levelle  (Super.),  23  N.  Y. 
N.  E.  Rep.  1028.  Supp.  818. 

6  Brown  v.  O'Brien  (Mass.),  47  N.    E. 


§  342»          OPERATIONS  PRELIMINARY    TO    CONSTRUCTION. 

such  owner  has  made  the  wall  one  in  common,  since  until  that  time  he  is  not 
able  to  assert  the  right  to  have  the  windows  closed.1  * 

342.  Openings  in  a  Party-wall,  —It  seems  that  windows  cannot  be  placed 
in  a  party-wall  owned  in  part  by  the  adjoining  owners.2     Openings  in  a  wall 
for  the  insertion  of  iron  beams  have  been  held  in  effect  to  be  windows  in  a 
party-wall,    and   as  such  unlawful.3     A  party -wall  is  presumably  a  dead  or 
solid  wall,  and  a  builder  becomes  liable  for  trespass  if  he  makes  openings  in 
it.4     However,  in  Minnesota  it  has  been  held  that  holes  cut  four  inches  deep 
in  an  eighteen-inch  wall  for  the  insertion  of  joists  and  sleepers  did  not  make 
a  breach  of  a  contract  that  the  wall  should  be  and  remain  a  solid  wall.      The 
act  of  joining  and  building  to  a  party-wall  in  a  manner  that  is  customary  and 
proper  does  not  violate  the  terms  of  the  contract. 

To  determine  whether  a  wall  was  improperly  built,  in  that  it  contained 
flues  which  encroached  two  inches  on  defendant's  portion  of  the  wall,  it  is 
proper  to  ask  an  architect  whether  it  is  customary  to  build  flues  in  party- 
walls.5  Whether  an  encroachment  of  two  inches  by  the  flues  was  a  substantial 
defect  in  the  construction  of  the  wall,  and  whether  it  prevented  defendant 
from  using  the  wall  in  the  same  way  that  plaintiff  did,  are  questions  of  fact.5 

343.  Agreement  of  Adjoining  Owner  to  Pay  his  Share  of  Cost  of  Party- 
wall. — Sometimes  agreements  are  made  by  which  an  adjoining  owner  is  to 
pay  for  his  share  of  the  cost  of  a  party-wall  when  he  shall  have  occasion  to 
use  it.      When  such  is  the  case,  the  assignee  or  heirs  of  the  party  who  owns 
the  vacant    lot  take  the   said    lot  subject  to  the   covenant,   which  may  be 
enforced  as  a  charge  on  the  land.6     An  agreement  between  the  owners  of 
adjoining  premises,  whereby   one  is  to  build  a  party-wall,    one-half  on  the 
ground  of  each,    and  the  other  is   to   pay  for  one-half  the  cost  of  its  con- 
struction when  he  uses  the  same,  will  bind  a  purchaser  of  the  estate  of  an 
owner  so  contracting  if  he  avails  himself  of  its  benefits.7     However,  under  an 
agreement  on  the  part   of  the  adjoining  owner  to  pay  when  the  party  wall 
shall  be  used  by  himself  or  his  heirs  or  assigns,  one  who  was  a  mortgagee 
when   the    said    adjacent    owner    built   upon  his    lot  is   not   liable  for    such 
payment  of  one-half- the   cost  of  said  wall,  nor  is  he  liable  because  he  after- 
wards became  owner  of  the  lot  through  foreclosure,  and  occupied  the  building 
after  its  erection ;   the  occupation  and  use  of  the  building  not  being  regarded 
as  a  use  of  the  wall  within  the  agreement.8 

1  Oldstein    v.    Firemen's    Bldg.    Assn.  5  Hammann  v.  Jordan  (N.  V.  App.),  29 
(La.),   10    So.    Rep.   928;  Wardens  v.  La-       N.  E.  Rep.  294,  reversing  13  N.  Y.  Supp. 
vezzolo  (Mass.),  30  N.  E.  Rep.  471;  Keat-       228. 

ing  v.  Springer  (111.),  34  N.  E.  Rep.  805;  6  Pillsbury    v.    Morris    (Minn.),    56   N. 

Robinson  z/.  Clapp,  65  Conn.  365.  W.  Rep.  170;    King  v.  Wight  (Mass.),  29 

2  National  Com.  Bank  v.  Gray  (Sup.),  N.  E.  Rep.  644;  Jordan  v.  Kraft  (Neb.), 
24  N.  Y.  Supp.  997.  51  N.  W.  Rep.  286. 

3  Bedell  v.  Rittenhouse  Co.  (Com.  PL),  7  Harris  v.  Dozier,  72  111.  App.  542. 

5  Pa.  Dist.  Rep.  689.  8  Pfeiffer  v.  Matthews  (Mass.),  37  N.  E. 

*  Bedell  v.  Rittenhouse  Co.,  supra.  Rep.  571. 

*  Set  Sees.  185,  supra;  682-690,  infra. 


231  PROPERTY  RIGHTS  DEFINED   BY  BOUNDARIES.         §  343. 

When  a  statute  provides  for  the  tearing  down  and  replacing  of  an  existing 
party-wall,  and  that  the  adjoining  owner  shall  not  use  the  said  wall  by  build- 
ing into  or  against  it,  or  by  using  it  for  any  new  building  until  he  shall  have 
paid  a  portion  of  the  cost,  the  adjoining  owner  is  not  made  liable  to  pay 
until  he  begins  to  make  a  new  use  of  the  wall.  The  mere  replacing  of  his 
beams  in  the  wall  as  they  had  been  in  the  old  wall  is  not  such  a  use,  but  a 
continuation  of  the  old  use.1 

Where  an  act  of  legislature  gave  officers  discretionary  powers  to  regulate 
the  thickness  of  party-walls,  subject  to  a  minimum  thickness  and  a  maximum 
encroachment  on  the  adjoining  lot,  and  it  was  provided  that  a  permit  to 
build  as  described  might  be  issued  in  the  discretion  of  the  inspectors, 
it  was  held  that  a  builder  who  had  erected  a  party-wall  of  greater  thickness 
than  that  prescribed  in  his  permit  could  not  require  the  adjoining  owner  to- 
pay  one-half  the  cost  thereof,  even  though  the  encroachment  was  within  the 
maximum  limit.2 

Where  a  party-wall  has  been  erected  by  an  owner  under  an  agreement  that 
his  neighbor  shall  pay  his  share  of  the  cost  when  he  shall  use  the  wall,  said 
landowner,  it  seems,  is  not  liable  for  the  fall  of  the  said  wall  upon  his  neigh- 
bor, where  the  building  erected  in  connection  with  the  wall  has  been  burned. 
This  was  so  held  even  though  the  adjoining  owner  had  not  made  any  use 
whatever  of  the  wall.3 

Under  a  party-wall  agreement,  one  party  was  to  be  liable  for  half  the  cost 
of  a  wall  built  by  the  other  whenever  he  built  to  such  wall.  He  built  a 
"  studded"  wall  next  to  the  party-wall,  touching  it  and  cemented  to  it,  to 
keep  out  the  moisture,  and  it  was  held  that  this  constituted  such  a  use  of  the 
wall  as  to  make  him  liable  under  the  agreement.4 

Where  one  in  building  a  house  joins  it  to  the  wall  of  another  house  with- 
out a  written  contract,  but  supposing  he  had  purchased  a  half-interest  in  the 
wall,  equity  will  not  compel  him  to  detach  his  house  from  the  wall,  but  will 
ascertain  the  damage  which  such  use  of  the  wall  has  been  to  the  owner,  and 
what  advantage  it  has  been  to  the  other,  and  decree  payment  accordingly. & 
In  determining  the  cost  of  a  party-wall,  the  testimony  of  the  architect  as  to 
the  cost  is  a  sufficient  basis  for  a  verdict  on  the  agreement.6 

1  Hoffstot  v.  Voigt   (Pa.),  23  Atl.  Rep.  3  Mickel    v.    York,    66    111.    App.    464 
351.  [1896]. 

2  Kirby  v.   Fitzpatrick    (Pa.    Sup.),   32  4  Harris  v.  Dozier,  72  111.  App.  542. 
Atl.  Rep.  53.     See  Natl.  Life  Ins.  Co.  v.           5  Moore  v.  Owen,  46  S.  W.  Rep.  1005. 
Lee  (Minn.),  77  N.  W.   Rep.  794  [1899];           6  Prefontaine  v.  McMicken  (Wash.),  36 
Keith  v.  Ridge  (Mo.),  47  S.  W.  Rep.  904  Pac.  Rep.  1048. 

[1898]. 


CHAPTER  XIX. 

{NTERFERENCE   OR   INVASION   OF    PROPERTY    RIGHTS    BY   SUR- 
VEYORS. 

351.  Trespass. — Any  interference  with  property  rights  is  a  trespass.  A 
forcible  disturbance  of  peaceable  possession  is  a  trespass,  without  regard  to 
the  question  of  title.  An  entry  on  land  without  license  and  without  express  or 
implied  permission  from  the  owner  is  a  trespass.  Generally  the  interference 
must  be  by  direct  physical  force  in  order  to  give  the  party  injured  a  cause  of 
action.  Mere  words,  as  a  rule,  are  not  sufficient. 

All  persons  are  liable  for  the  trespass  who  participate  in  the  wrongful  act, 
by  aiding  in  it,  advising  it,  or  assenting  to  it.  If  an  employer  or  servant  aid, 
abet,  or  incite  the  perpetration  of  the  trespass,  he,  as  well  as  the  person  who 
commits  the  act,  is  liable. 

The  liability  of  the  trespasser  does  not  depend  upon  his  intention  to  do 
the  injury.  He  is  liable  for  the  mischievous  or  careless  act,  if  injury  result, 
even  if  done  with  the  best  intentions.  A  balloonist  has  been  held  liable  for 
the  acts  of  a  crowd  which  broke  into  a  garden  to  assist  him  in  descending 
and  to  prevent  him  from  being  entangled  in  the  trees,  the  crowd  having  trod- 
den down  the  owner's  vegetables  and  flowers.1 

A  trespasser  is  liable  for  cutting  trees,  though  he  did  it  under  instructions 
from  persons  who  had  no  authority  in  the  matter.2  A  trespasser  cannot 
justify  himself  on  the  ground  of  mistake.  A  person  is  expected  to  know  the 
boundaries  of  his  land,  and  whether  his  title  to  it  is  good  and  sufficient. 

If  the  motive  in  doing  an  act  were  bad,  that  alone  could  not  be  made  a 
ground  of  action  if  the  rights  of  the  property  owner  were  not  violated.  Nor 
can  a  trespass  be  excused  by  showing  that  the  plaintiff  is  a  trespasser,  a 
wrong-doer,  or  a  violator  of  the  law.3 

The  spirit  in  which  the  wrongful  act  is  committed  may  be  shown  in 
mitigation  of  damages. 

The  owner  may  resist  an  entry  upon  his  land,  but  he  is  not  justified  in 
killing  the  trespasser  unless  it  is  necessary  to  prevent  a  felonious  destruction 

1  Guille  v.  Swan,  19  Johns.  (N  .  Y.)  381.  3  Hill  v.  Morrey,  26  Vt.  178  [1854] ;  26 

2  Allison  v.  Little,  85  Ala.  512.  Amer.  &  Eng.  Ency.  Law  579. 

232 


233  INVASION  OF  PROPERTY  RIGHTS  BY  SURVEYORS.       §  352. 

of  his  property,  or  to  defend  himself  against  loss  of  life  or  great  bodily  harm,  i 
A  property  owner  has  the  right  to  order  a  trespasser  from  his  premises,  but 
he  has  no  right  to  follow  him  up  and  provoke  an  attack  upon  himself  so  fierce 
as  to  require  the  taking  of  the  trespasser's  life  in  self-defence.2 

352.  Engineers  and  Surveyors  as  Trespassers. — Surveying  and  engineer- 
ing operations  often  induce  and  sometimes  require  those  who  conduct  them 
to  commit  trespass.  Surveys  are  conducted  on  land,  and  obstacles  are  met. 
Rather  than  clear  the  line,  surveyors  sacrifice  their  safety  and  run  risks  by 
trespassing  upon  adjoining  estates.  Surveys  must  be  made  for  proposed 
engineering  structures,  to  determine  their  cost  or  practicability,  before  any 
steps  have  been  taken  to  secure  rights  of  way,  and  frequently  before  any  privi- 
leges are  sought.  Every  surveyor  and  engineer  has  had  amusing  and  exciting 
experiences  with  obstinate  and  belligerent  landowners.  Men,  women,  dogs, 
and  cattle  have  played  almost  as  important  a  part  in  the  protection  oi 
property  as  have  the  courts,  but  there  are  some  cases  recorded  from  which 
the  following  suggestions  have  been  obtained. 

There  is  no  reason  why  a  surveyor  acting  simply  in  his  professional 
capacity  should  not  be  held  for  trespass  the  same  as  any  other  person ;  but 
the  propriety  and  legitimate  object  of  his  work  especially  recommend  him  to 
the  mercies  of  the  court,  and  the  damages  assessed  are  usually  merely  nominal. 
Because  of  the  trifling  injury  resulting  from  the  trespass,  few  cases  reach  the 
higher  courts,  and  few  therefore  are  reported. 

When  a  surveyor  enters  upon  land  of  another  for  the  purpose  of  making  a 
survey,  he  is  a  trespasser,  and  is  liable  for  any  injury  that  he  may  do  to  the 
estate. 3  A  person  who  enters  with  a  surveyor  for  the  purpose  of  making  a 
survey  is  guilty  of  a  trespass,  because  every  unauthorized  entry  upon  the  land 
of  another  is  a  trespass.  When  one  so  enters  and  surveys  a  part  of  the  land, 
even  if  he  does  not  cut  or  mark  trees  or  shrubs,  he  is  a  trespasser.4 

The  fact  that  the  surveyor  cut  the  trees  under  instructions  from  persons 
who  had  no  right  to  authorize  the  cutting  will  not  afford  him  a  defense  in  an 
action  for  trespass,  though  he  believed  such  persons  had  the  necessary 
authority.5  A  surveyor  has  no  more  right  to  move  or  change  a  monument 
which  marks  the  boundary  of  a  field  than  has  any  one  else.6 

As  to  how  far  a  county  is  liable  for  trespass  or  damages  done  to  private 
property  by  its  officers  in  the  exercise  of  powers  conferred  for  the  benefit  of 
the  locality  and  its  inhabitants,  such  as  those  relating  to  the  opening  and 
keeping  open  of  roads,  as  distinguished  from  powers  relating  to  the  adminis- 

1  Carroll  v.  State,  23  Ala.  28.  ter,  22  N.  H.  472;  Guille  v.  Swan,  19  John. 

2  Tiffany  v.  Commonwealth,  121  Pa.  St.       381;  Newson    v.    Anderson,    2    Ired.  42; 
165.  '  Norvell  z'.  Thompson,  2  Hill  (S.  C.)  470; 

8  Ames  Cases  on  Torts  82.  Carter   v.   Wallace.    2    Tex.    206,  accord ; 

4  Dougherty  v.  Stepp,  i  Dev.  &  Battle  Keller  v.  Masser,  Tap.  (Ohio)  43,  contra. 

3?i  Ll835]:  Tuffts  v.  Spring,  15  Mass.  135;  5  Allison  v.   Little  (Ala.),  So.  Rep.  221 

Pfeiffer  v.  Grosman,  15   111.  53;   Mundell  [1889]. 

v.  Hugh,  2  Gill  &  J.  193;  Brown  v.  Man-  6  Gregory  v.  Knight,  50  Mich.  61. 


§  352-          OPERATIONS  PRELIMINARY   TO    CONSTRUCTION.  2 34 

tration  of  the  general  laws  and  enforcement  of  the  general  policy  of  the  state, 
it  has  been  held  that  when  a  member  of  the  county  board  of  supervisors  who 
was  also  a  road  commissioner,  claiming  to  act  in  his  official  capacity,  with  the 
assistance  of  other  citizens  repeatedly  tore  down  a  gate  opening  into  private 
grounds,  and  insisting  that  the  road  through  such  grounds  was  a  public  road 
by  prescription  or  dedication,  and  such  road  was  thereafter  declared  a  public 
road  by  resolution  of  the  board  of  supervisors,  and  was  surveyed  and  recorded 
as  such,  the  county  was  liable  for  such  trespass,  and  that  the  acts  of  the  board 
of  supervisors  was  an  adoption  and  ratification  of  the  officer's  acts.1  The 
placing  by  their  engineer  of  stone  bounds  upon  a  line  located  by  commis- 
sioners has  been  held  not  to  be  taking  possession  of  the  land.2 

Where  a  superintendent  of  streets  forcibly  entered  with  his  men  upon 
another's  land  in  pursuance  of  a  vote  of  the  board  of  aldermen,  but  not 
under  vote  of  the  city  council,  and  not  in  reference  to  any  property  which  the 
city  claims  to  own,  nor  in  performance  of  any  work  which  the  city  was 
specifically  authorized  to  do,  nor  in  which  the  city  had  a  corporate  interest 
distinct  from  that  of  the  town  and  the  state,  the  city  was  held  not  liable  to 
an  action  by  the  owner  for  the  trespass. 3 

An  idea  of  the  liability  of  a  surveyor  as  a  trespasser  may  be  derived  from  a 
case  decided  in  Vermont  in  which  a  third  party,  who  was  a  mere  volunteer, 
not  acting  at  the  request  of  the  defendant  and  not  in  his  employ,  cut  a  few 
small  trees  and  poles  upon  the  land  of  the  plaintiff  and  over  the  boundary- 
line  between  the  plaintiff  and  defendant.  The  volunteer  was  somewhat  in 
the  same  position  as  a  surveyor  in  the  employ  of  the  landowner  when  he 
undertakes  to  survey  his  land.  The  volunteer  in  this  case  had  been  requested 
by  the  landowner  to  be  careful  not  to  cut  over  the  line.  It  also  appeared 
that  the  adjoining  landowner,  the  plaintiff,  had  told  both  his  adjoining  land- 
owner and  the  said  volunteer  when  they  began  to  mend  the  fence  that  they 
must  not  cut  upon  his  side  of  the  fence.  It  was  held  that  the  defendant 
landowner  was  liable  for  the  volunteer's  acts  when  they  were  done  in  his 
presence  and  for  his  benefit  and  he  had  not  dissented  in  any  manner  to  such 
acts;  that  the  defendant  did  cut  the  trees  negligently  and  for  want  of  proper 
information,  and  that  the  defendant  was  liable  for  the  acts.  If,  however,  the 
volunteer  had  been  cutting  trees  by  defendant's  consent  or  direction  and  he 
knowingly  or  willfully,  without  defendant's  consent  or  direction,  cut  trees 
upon  the  plaintiff's  land  or  possession,  then  the  defendant  would  not  have 
been  liable  for  such  acts.4 

Township  officers  trespassing  upon  land  in  the  attempt  to  locate  a  section- 
line  highway  on  a  line  other  than  its  proper  location  are  personally  liable  for 
the  trespass.5  But  any  conduct  on  the  part  of  a  property  owner  which 

1  Coburn  v.  San  Mateo  Co.  (C.  C.),  75       [1883]. 

Fed.  Rep.  520.  4  Hill  v.  Morrey,  26  Vt.  178  [1854]. 

2  Parker  v.  Co.  of  N.,  150  Mass.  489.  5  Webster  v.  White  (S.   D.  ),  66  N.  W. 

3  Manners  v.   Haverhill,  135  Mass.  165       Rep.  1145. 


235  INVASION  OF  PROPERTY  RIGHTS   BY  SURVEYORS.       §  353- 

prevents,  because  of  bodily  fear,  a  surveyor  in  making  the  survey  of  lands 
pursuant  to  an  order  from  the  court  has  been  held  an  illegal  resistance  within 
the  Revised  Statutes  of  Louisiana,  §  865,  Act  n>  I882.1 

It  is  sometimes  difficult  to  determine  whether  certain  acts  are  trespass  or 
not.  One  question  which  has  been  raised  in  the  schools  is  whether  or  not  it 
is  a  trespass  to  pass  over  another's  land  in  a  balloon.  It  has  been  held  that 
to  shoot  a  pheasant  which  was  over  another  man's  land  was  an  act  of 
trespass.2 

Whether  or  not  the  owner  of  a  dog  or  cat  is  liable  for  trespass  of  the 
animal  on  land  seems  not  to  be  well  settled.3  It  may  be  the  subject  of 
statute  law.  Some  cases  are  distinguished  where  a  dog  goes  upon  land  of  his 
own  free  will  or  fancy  from  those  where  he  accompanies  his  owner  or  keeper.4 
The  owner  or  keeper  is  held  liable  in  the  latter  instance. 

353.  Trespass  Committed  by  Surveyor  or  Engineer  when  a  Public 
Officer. — When  a  surveyor  or  engineer  is  an  officer  of  the  state  or  of  the 
Federal  Government,  or  is  acting  by  authority  of  either,  or  under  powers 
granted  to  a  corporation  by  the  legislature,  he  is  authorized  to  enter  upon 
lands  and  perform  his  work,  and  cannot  be  interfered  with,  if  acting  within 
the  scope  of  his  duties.  The  entry  must  be  for  a  temporary  purpose  and  be 
accompanied  with  no  unnecessary  damage.  Preliminary  surveys  and  explora- 
tions for  determining  the  route  of  a  canal  or  railroad  may  be  authorized  by 
the  state  without  compensation  being  previously  paid  or  secured  to  an 
owner.  This  is  so  even  though  the  Constitution  requires  the  payment  of 
compensation  to  precede  a  taking,  on  the  ground  that  no  estate  is  thereby 
taken,  the  owner  not  being  deprived  of  the  use  and  enjoyment  of  his  prop- 
erty.5 The  occupation  becomes  a  taking  when  it  extends  to  an  interference 
with  the  owner's  use,  to  the  construction  of  works  upon  the  land,  or  to  acts 
which  are  in  the  nature  of  waste.6 

A  railroad  company  must  of  necessity  be  permitted  to  go  upon  lands  for 
the  purpose  of  surveying  and  locating  the  line  of  its  road,  for  until  the  line  is 
located  condemnation  is  impossible.7  The  right  of  examination  by  making 
survey  is  incident  to  the  right  of  appropriation  and  necessary  to  its  proper 
exercise.8 

1  Armstrong  v.  Vicksburg,  etc.,  R.  Co.  504,  525;  Orr  v.  Quimby,  54  N.  H.   590; 

(La.),  16  So.  Rep.  468.  Lyon  v.  Green  Bay  &  M.  R.  Co.,  42  Wis. 

a  See  Kenyon  v.  Heart,  6  B.  &  M.  249.  538;  Neal  v.   Pitts'burg  &  C.   R.   Co.,  31 

3  Ames  Cases  on  Torts  78,  note,  and  cases  Pa.  St.  19,  2  Grant  137;  Walther  v.  War- 
cited  ;  Read   v.  Edwards,   17  C.  B.  N.  S.  ner,  25  Mo.  277;  Doughty  v.  Somerville 
260.  &  E.  R.  Co.,  3  Halst.  Ch.  51,  63;  State  v. 

4  Beckwith  v.  Shordike,  4  Burrow  2092.  Seymour,  6  Vroom    47;  Stuart  v.     Balti- 

5  Pierce    on     Railroads    194,    and  cases  more,  7  Md.  500. 

collected  ;  Bloodgood  v.  Mohawk  &  H.  R.  6 Davis  v.  San  Lorenzo  R.   Co.,  47  Cal. 
Co.,  14  Wend.  51,  18  Wend.  9;  Polly  v.  517;  Morris  &  E.  R.  Co.  v.  Hudson  Tun- 
Saratoga   &   W.   R.    Co.,    9    Barb.    449;  nel  R.  Co.,  10  C.  E.  Greene  384. 
Bonaparte  v.  Camden  &  A.  R.  Co.,  Bald-  7  Lyon  v.  Green  Bay  &  Min.   Ry.  Co., 
win     205;  Winslow  v.   Gifford,  6   Cush.  42  Wis.  544  [1887]. 

327;  Cushman    v.    Smith,    34   Me.     247;  8  Ward  v.  Toledo,  etc.,  R.  Co.,  10  West. 

Eaton  v.  Boston,  C.  &  M.  R.  Co.,  51  N.  H.  L.  Jour.  365  [1853]. 


§353-          OPERA  TIONS  PRELIMINA  RY   TO    CONS  TR  UCT20N.  236 

As  Judge  Cooley  in  his  book  on  Constitutional  Limitations :  has  said : 
"  No  constitutional  principle  is  violated  by  a  statute  which  allows  private 
property  to  be  entered  upon  and  temporarily  occupied  for  the  purpose  of 
survey  and  othej  incipient  proceedings  with  a  view  to  judging  and  determin- 
ing whether  the  public  needs  require  the  appropriation  or  not,  and  if  so,  what 
the  proper  location  shall  be;  and  the  party  acting  under  this  statutory 
authority  would  neither  be  bound  to  make  compensation  for  the  temporary 
possession,  nor  be  liable  to  any  act  of  trespass."  Sedgwick  in  his  work 
upon  Statutory  and  Constitutional  Law  2  has  gone  a  step  further  by  saying : 
' '  In  the  construction  of  works  of  public  improvement,  as  railroads  or  canals 
for  instance,  before  it  is  known  that  the  lands  will  be  wanted  preliminary 
steps,  such  for  instance  as  surveys,  are  indispensably  necessary.  These  pre- 
liminary steps  are  in  themselves  a  trespass,  and  may  sometimes,  as  by  felling 
trees,  work  actual  injury  to  the  proprietor.  On  the  other  hand,  if  payment 
be  not  made  before  the  work  is  actually  begun,  then,  if  it  be  discontinued  or 
left  in  an  imperfect  state,  the  owner  might  be  entirely  remediless.  In  such  a 
conflict  of  interests  the  current  of  decisions  seems  to  tend  to  establish  the  rule 
that  the  preliminary  steps  in  regard  to  public  works  may  be  taken  without 
any  compensation,  but  that  before  any  definite  act  be  done  towards  the  con- 
struction of  the  improvement  which  is  in  the  nature  of  the  assertion  of  owner- 
ship, payments  must  be  made  or  tendered,  or  a  certain  and  adequate  remedy 
provided."  Redfield  in  his  work  on  Railways3  expresses  a  like  view  when 
he  says:  "It  is  settled  that  the  legislature  may  authorize  railway  companies 
to  enter  upon  lands  for  the  purpose  of  preliminary  surveys,  without  making 
any  compensation  therefor,  doing  as  little  damage  as  possible,  and  selecting 
such  seasons  of  the  year  as  will  do  least  damage  to  the  growing  crops." 

The  proper  rule  to  observe,  in  this  respect,  is  such  as  a  prudent  owner  of 
the  land  would  be  likely  to  adopt  in  making  surveys  for  his  own  advantage.4 
In  some  states  the  party  is  made  liable  by  statute  for  damages  for  temporary 
occupation. 

In  the  English  statutes,  and  in  many  of  the  special  charters  and  general 
railway  acts  in  the  American  states,  the  companies  are  bound  to  make  com- 
pensation for  such  temporary  use  of  the  land  where  they  do  not  ultimately 
take  the  land.  In  such  a  case,  where  the  statute  authorizes  the  entry  upon 
land,  the  companies  are  not  treated  as  trespassers,  and  even  where  the  statute 
provides  for  no  compensation  it  is  not  regarded  as  a  taking  of  private 
property  for  public  use  within  the  provisions  of  the  American  state  and 
United  States  constitutions.5 

^ooley's  Const.  Lim.  (3d  ed.)  560.  good  v.  Mohawk  &  H.  R.  Co.,  14  Wend. 

2  Sedgwick  on  Statutory  and  Constitu-  51;  s.  c.,  18  Wend.  9;  Mercer  v.  McWil- 

tional  Law  (2d  ed.)  467.  Hams,  Wright  132. 

5  Redfield  on  Railways  (5th  ed.)  258.  5  Redfield  on  Railways  (6th  ed.),  §  6, 

*Cushman  v.  Smith,  34  Me.  247;   Polly  p.  247. 
v.  Saratoga  R.  Co.,  9  Barb.  449;  Blood- 


237          INVASION  OF  PROPERTY  RIGHTS  BY  SURVEYORS.       §  354, 

While  a  railroad  company  may  be  permitted  to  enter  upon  lands  for  the 
purpose  of  making  preliminary  surveys,  it  must  also  respond  to  the  owner 
for  any  injuries  done  to  his  property;  and  in  such  case  the  party  who  owned 
or  was  in  possession  of  the  land  when  the  injury  was  committed  is  entitled  to- 
damages,  and  not  a  subsequent  purchaser. 1  In  a  case  of  trespass 2  against, 
the  defendant,  who  was  in  possession  of  a  railroad  as  mortgagee,  for  running 
engines  and  cars  over  the  plaintiff's  land,  this  question  is  discussed  byr 
Shepley,  J.,  and  it  is  held  that  "  to  take  the  real  estate  of  an  individual  for 
the  public  use  is  to  deprive  him  of  his  title  to  it,  or  of  some  part  of  his  title, 
so  that  the  entire  dominion  over  it  no  longer  remains  with  him,"  and  that 
1 '  the  exclusive  occupation  of  that  estate  temporarily,  as  an  initiatory  proceed- 
ing to  an  acquisition  of  a  title  to  it,  cannot  amount  to  a  taking  of  it  in  that, 
sense."  We  are  not  prepared  to  hold  that  a  substantial  injury  to  real  estate, 
as  by  the  destruction  of  trees  growing  upon  it,  does  not  constitute  a  taking 
of  it  within  the  meaning  of  the  constitution,3  and  the  application  of  this, 
doctrine  to  preliminary  surveys  seems  to  be  settled  by  the  authorities. 

A  railway  or  improvement  company  may  reasonably  expect  its  engineering 
force  to  carry  on  its  preliminary  and  location  surveys  with  as  little  conflict  as. 
possible  with  the  property  owners  with  whom  they  are  likely  afterwards  to 
have  to  deal  for  right  of  way  and  other  privileges  and  easements.  It  is  an 
engineer's  duty  to  keep  relations  with  such  property  owners  as  pleasant  as 
possible;  and  if  the  principle  that  "  discretion  is  the  better  part  of  valor  "  be 
adopted,  and  the  engineer  seeks  to  obviate  any  contention  or  controversy, 
endeavoring  to  act  entirely  within  all  his  rights,  he  will  probably  succeed 
better  than  if  he  act  otherwise.  He  should  know  that  he  may  make 
surveys  and  enter  upon  property  for  that  purpose,  doing  no  more  harm  than 
is  reasonably  necessary,  and  not  be  liable  in  an  action  of  trespass. 

In  the  state  of  New  York,  the  Code  of  Civil  Procedure,  §  1682,  provides, 
that,  in  an  action  relating  to  real  estate,  where  the  court  is  satisfied  that  a 
survey  of  any  property  in  possession  of  either  party  is  necessary  or  expedient 
to  enable  either  party  to  appropriate  a  building  or  to  appropriate  a  way 
for  travel,  it  may  grant  leave  to  enter  on  the  property  to  make  such  a. 
survey.  Such  act  has  been  held  to  apply  to  an  action  for  entering  upon  land 
and  removing  stone  and  materials  therefrom.  It  is  not  limited  to  surveys  of 
the  surface  of  the  land,  but  also  includes  underground  surveys,  as  where  a 
tunnel  has  been  run  underground  arid  materials  have  been  removed  from  it.4 

354.  Trespass  by  Government  Surveyors. — "  If  trespasses  of  a  temporary 
character  may  be  lawfully  committed  by  a  private  corporation,  in  a  work 
preliminary  to  the  construction  of  a  railroad,  without  compensation,  then 
it  would  seem  that  the  same  acts  committed,  under  the  direction  of  the 

1  Galveston,  etc.,  R.  Co.  v.  Pfeuffer,  56          3  See  Eaton  v.  B.  C.  &  M.  Railroad,  51 
Tex.  66  (1881);  Forbish  v.  Goodwin,  25       N.  H.  504. 

N.  H.  425;  May  v.  Slade,  24  Tex.  205.  *  Howe's  Cave  L.  &  C.  Co.  v.  Howe's 

2  Cushman  v.  Smith,  34  Me.  256.  Cave  Assn.  (Sup.),  34  N.  Y.  Supp.  848. 


§354-  OPERATIONS  PRELIMINARY    TO    CONSTRUCTION.  238 

President  of  the  United  States,  in  executing  the  provisions  of  an  act  of 
Congress,  with  ample  provision  for  the  assessment  of  damages,  might  be 
authorized  without  requiring  payment  or  security  in  advance."  May  trees  be 
constitutionally  cut  without  any  compensation  by  a  private  corporation, 
preparatory  to  constructing  a  railroad,  which  cannot  be  constitutionally  cut 
by  the  President  of  the  United  States  for  an  important  public  use  without 
payment  or  security  in  advance  ?  Perhaps  the  injury  done  by  the  latter  would 
originally  be  greater  than  that  done  by  the  former,  but  the  constitutionality 
of  the  acts  does  not  depend  upon  the  extent  of  the  injury  done.  Whatever 
reasons  may  have  induced  courts  to  decide  that  the  temporary  injuries  to 
which  we  have  referred  may  be  allowed  without  violating  any  constitutional 
rights,  a  satisfactory  ground  upon  which  decisions  may  be  based  is  that  it  was 
simply  unavoidable.  It  is  necessity,  in  a  great  degree,  which  justifies  the 
right  of  eminent  domain  in  all  cases. 

In  a  leading  New  York  case 1  on  this  subject,  which  has  been  cited  as 
decisive  in  the  favor  of  the  plaintiff,  the  Chancellor,  in  holding  that  "  before 
the  legislature  can  authorize  the  agents  of  the  state,  and  others,  to  enter 
upon  and  occupy,  or  destroy,  or  materially  injure  the  private  property  of 
any  individual,  except  in  cases  of  actual  necessity  which  will  not  admit  of 
any  delay,  an  adequate  and  certain  remedy  must  be  provided  whereby  the 
owner  of  such  property  may  compel  the  payment  of  his  damages,"  recognizes 
that  there  may  be  cases  of  necessity  in  which  the  rule  he  lays  down  will  not 
apply.  A  similar  exception  is  recognized  in  other  authorities  which  sustain 
the  doctrine  of  the  New  York  case.  The  settled  and  fundamental  doctrine 
is  that  the  government  has  no  right  to  take  private  property  for  public  pur- 
poses without  giving  compensation,  and  it  seems  to  necessarily  imply  that  the 
indemnity  should,  in  cases  which  will  admit  of  it,  be  previously  and  equitably 
ascertained,  and  be  ready  for  reception,  concurrently  in  point  of  time  with 
the  actual  exercise  of  the  right  of  eminent  domain."  *  "  The  maxim  of  law 
is  that  a  private  mischief  is  to  be  endured  rather  than  a  public  inconvenience. 
Tf.  a  common  highway  be  out  of  repair,  a  traveller  may  lawfully  go  through 
an  adjoining  private  inclosure. "  3 

The  inconvenience  of  procuring  an  assessment  for  damages,  or  of  giving 
security  for  their  payment  in  advance,  of  an  actual  appropriation  of  land  as  a 
site  for  permanent  buildings,  or  as  a  reservoir  for  purposes  of  flowage,  would 
be  serious,  or  so  far  impracticable  as  to  render  a  right  to  enter,  subject  to 
such  conditions,  of  little  or  no  value,  and  would  greatly  obstruct,  if  not 
altogether  defeat,  important  public  improvements.  This  case  presents 
another  instance  in  which  the  doctrine  of  necessity  may  be  properly  invoked. 
v  The  practical  effect  of  holding  that  the  defendant  could  not  enter  upon 

1Bloodgood    v.    Mohawk    &    Hudson       Orr  v.  Quimby,  54  N.  H.  590  [1874]. 
Company,  18  Wend.  9,  17.  32  Kent  Com.  (i2th  ed.)  338;  Broom's 

* 2  Kent  Com.  (i2th  ed.),  note/.     See       Maxims  2. 


239          INVASION  OF  PROPERTY  RIGHTS  BY  SURVEYORS.       §  355. 

the  plaintiff's  land  for  the  necessary  purposes  of  a  coast  survey,  or  that  he 
could  not  do  any  substantial  injury  there  after  he  had  entered,  without  pre- 
voiusly  paying  or  securing  plaintiff  for  the  damage  to  be  caused,  would  be  to 
deny  the  right  altogether.  An  assessment  of  the  damages  previous  to  the 
entry,  or  even  previous  to  the  injury,  would  be  absolutely  impossible.  The 
damage  done  to  the  landowner  by  an  entry  upon  his  land  ' '  for  the  purpose 
of  exploring,  surveying,  and  triangulating  the  said  coast,  and  for  the  purpose 
of  leveling  the  same  and  doing  any  and  all  other  necessary  acts  to  effect  the 
objects  of  the  said  several  acts  of  Congress,"  could  rarely  if  ever  be  ascertained 
in  advance.  At  what  point  the  agent  of  the  government  might  need  to  erect 
temporary  works,  or  over  what  lands  they  might  have  occasion  to  construct 
temporary  roads,  no  human  power  could  tell  before  entry.  What  trees  or 
tree-tops  or  branches  it  might  be  necessary  for  them  to  remove  from  the  line 
of  sight  could  not  possibly  be  ascertained,  except  by  an  actual  experiment 
upon  the  ground.  Obviously  there  could  be  no  hearing  before  the  commis- 
sioners for  the  assessment  of  the  damages  until  after  the  mischief  was  all  or 
nearly  all  done. 

An  entry  upon  and  a  temporary  use  of  private  property  by  the  public  for 
a  preliminary  survey,  without  compensation,  are  justified  by  the  authorities. 
Whether  there  is  any  limit  to  the  uncompensated  damage  that  may  be  done 
by  preparatory  steps  of  that  kind;  what  the  limit  is,  if  there  is  any;  and 
whether  such  entry  and  use  are  an  exercise  of  the  police  power,1  are  questions 
that  seem  not  to  be  settled.2 

The  entry  and  injury  must  be  reasonably  necessary  for  the  purposes  of  the 
survey  or  the  trespasser  will  be  liable  to  an  action  of  tort.  And  an  unneces- 
sary entry  and  destruction  of  property  is  not  excused  because  the  trespasser  is 
an  agent  of  the  United  States,  in  the  service  of  the  Coast  Survey,  or  is  acting 
under  the  authority  of  an  act  of  the  legislature  specially  authorizing  the  entry 
and  erection  of  works. 

355.  Surveyor's  Interference  with  Travel  on  Highways,  —  To  what 
extent  a  surveyor  may  occupy  a  road  with  his  instrument,  to  the  delay  of 
travel,  must  be  a  question  depending  upon  circumstances.  Generally  the 
rights  of  individuals  to  the  occupation  and  use  of  a  street  or  part  of  a  street 
are  equal.  A  surveyor  can  delay  traffic  no  longer  than  a  vehicle  or  a  person, 
which  would  be  determined  by  what  was  reasonable.  Primarily  streets  are 
for  travel.  To  what  extent  they  may  be  used  for  surveying  purposes  is  not 
well  settled  by  the  courts.  What  is  a  reasonable  and  proper  use  of  a  public  or 
private  way  depends  much  upon  public  usage.  The  general  use  and  acquies- 
cence of  the  public  is  evidence  of  right.  The  owner  of  land  may  make  such 
reasonable  use  of  the  way  adjoining  his  land  as  is  usually  made  by  others 
similarly  situated.  In  populous  towns,  where  land  is  valuable,  it  is  the 
custom  to  build  to  the  line  of  the  street.  Building  materials  are  placed  in 
1Winslow  v.  Gillford,  6  Cush.  327.  2  Orr  v.  Quimby,  54  N.  H.  590  [1874.] 


§355-          OPERATIONS  PRELIMINARY   TO    CONSTRUCTION:  240 

the  street  to  the  inconvenience  and  annoyance  of  the  public,  and  excavations 
are  made  and  embankments  raised.  Streets  are  blocked  for  brief  intervals  of 
time  by  trucks  delivering  materials,  and  for  longer  intervals  by  excavations 
for  conduits  to  convey  gas,  water,  and  electricity.  Surveying  operations  are 
necessary  to  these  public  improvements  and  to  private  work,  and  because  of 
this  it  is  equally  reasonable  that  the  public  should  put  up  with  some  incon- 
venience that  they  may  be  conducted.  The  time  that  such  inconvenience 
may  be  imposed  upon  the  public  should  be  short  and  reasonable;  it  generally 
should  not  exceed  three  to  ten  minutes. 


PART  III. 

DETERMINATION   OF    THE    BOUNDARIES    OF 
LAND.     SURVEYS  AND  SURVEYING. 


CHAPTER  XX. 

BOUNDARIES    IN    GENERAL.      HOW    DESCRIBED,    ESTABLISHED, 

AND   MAINTAINED. 

361.  Relation  of  Law  and  Surveying. — In  order  to  understand  questions 
and  disputes  pertaining  to  lands,  some  knowledge  of  the  rights  and  privileges 
incident   to  land  is  necessary.      Yet  how  few  surveyors  and  engineers   have 
anything  but  the  most  superficial  knowledge  of  property,  or  the  rights  of  the 
owner  in  his  estates !     As  a  result,  it  is  not  surprising  that  the  courts  are  full 
of  controversies  in  regard   to   their   boundaries.     The    lawyer   having  little 
knowledge  of  surveying,  and  the  surveyor  less  knowledge  of  law,  mischievous 
results  are  brought  about  by  the  advice  of  the  one  profession,  in  opposition 
to  the   views   and   teaching  of  the   other  profession.      The  opinions   of  the 
lawyer  are  usually  disregarded  in  the  field,  and  the  opinion  of  the  surveyor 
suffers  a  like  disregard  in  the  law  office  and  court-room,  and  the  result  is 
expensive  and  needless  litigation,  which  might  easily  be  avoided  by  a  careful 
study  of  the  rights  and  privileges  of  landowners  and  of  the  general  law  of 
boundaries,  and  by  a  proper  application  to  the  case  of  the  sound  principles 
of  survey   and   an   intelligent   consideration  of  the  practices,   customs,    and 
usages  of  surveyors  and  engineers. 

362.  Boundaries  Described  in  Deed  of  Conveyance. — In  locating  or  sur- 
veying a  piece  of  property,  the  surveyor's  primitive  source  of  information  is 
the  contract,  warrant,  grant,  or  deed  describing  the  piece  of  property  to  be 
located.     There  should  be  found  a  clear  and  complete  description  of  the 
property;  it  should  comprise  a  careful  description  of  the  property  with  refer- 
ence to  permanent  and  established  monuments,  lines,  or  bounds,  and  these 
with  reference  to  one  another.     As  an  engineer  in  construction  work  finds  his 

241 


§363.          OPERATIONS  PRELIMINARY    TO    CONSTRUCTION.  2^2 

relations,  duties,  powers,  and  obligations  defined  and  described  in  the  con- 
tract, so  the  surveyor  must  look  for  his  instructions  to  the  grant  or  deed 
describing  the  property  to  be  measured  or  surveyed.  The  deed,  old  maps, 
field-notes  of  old  surveys,  and  statements  of  landowners  in  the  vicinity  will 
assist  materially  in  making  out  and  locating  a  line  in  controversy,  but  the 
record  of  the  survey  should  be  found  in  the  grant  or  deed  of  conveyance. 
The  surveyor's  duties  are  not  limited  to  a  careful  examination  and  study  of 
the  description  by  monuments,  metes,  and  bounds,  but  he  should  also  note 
carefully  the  dates,  the  names  of  the  parties,  the  grant,  and  such  references 
as  are  made  to  other  lands  and  persons.  He  should  study  the  case  to  make 
himself  familiar  with  its  history  for  as  many  years  as  is  possible,  to  the  end 
that  he  may  do  justice  to  the  parties  interested. 

363.  Phraseology  of  a  Description  is  Important, — The  phraseology  of  a 
description  is  a  very  important  consideration  in  describing  a  survey.      If  the 
draftsman  be  not  careful  and  precise  in  his  language,  he  may  do  irreparable 
injury  to  his  client.      The  use  of  simple  words  such  as  "  shore,"  "  bank," 
and*"  stream,"  or  "by, "  "along,"  "on,"  and  "  by  the  side  of,"  are  often 
important  in   determining  the  boundaries  of  land,   for  they  have    particular 
meanings  in  the  law.      The  surveyor  should  also  remember  that  the  line  he 
runs  out  or  surveys  is  not  always  the  one  to  incorporate  in  a  deed  or  descrip- 
tion; but,  in  describing  land,  he  should  include  within  the  deed  all  the  land 
that  his  client  rightly  owns  or  has  just  claims  to.      Old   descriptions  should 
not  be  repeated,  but  may  be  incorporated  by  reference  and  a  declaration  in  the 
deed  of  conveyance  that  "  the  survey  includes  all  that  tract  of  land  conveyed 

to  John  Smith  by  John  Doe  by  deed  dated and  recorded  in , 

and  certain  other  lands  acquired  by  John  Smith  by  descent  [or  purchase,  or 
adverse  possession,  or  accretion,  etc.],  and  described  as  follows:  ..." 

Such  a  practice  would  clear  up  many  old  titles  and  ambiguous  descrip- 
tions, and  set  at  rest  once  for  all  a  common  source  of  trouble  and  litigation 
between  neighboring  landowners.  There  should  be  a  clear  reference  to  titles 
and  descriptions  of  earlier  conveyances,  so  that  the  chain  of  title  can  be  fol- 
lowed, and  a  careful  explanation  of  the  variance  between  the  new  and  the  old 
descriptions  should  be  included.  The  universal  practice  of  attorneys  to  per- 
petuate old  descriptions  of  estates,  drafted  from  surveys  made  with,  a  Jacob 's- 
staff  and  from  distances  that  were  paced,  is  to  be  condemned,  and  can  be 
excused  only  by  a  desire  to  be  extremely  cautious  and  to  save  themselves  or 
their  asociates  trouble  when  they  have  to  search  the  title  at  some  future  day. 
More  good  would  result  if  they  would  correct  defective  descriptions  by  having 
the  land  surveyed  and  thus  save  their  clients  litigation  over  boundaries  loosely 
defined  and  described. 

364.  Boundaries  Defined. — A  boundary  is  the  delineation  of  the  limits  of 
a  tract  of  land,  or  the  separation,  natural  or  artificial,  which  marks  the  con- 
fines  or  lines   of  division    of  two   adjoining   estates.      These  limits   may   be 


243  BOUNDARIES  IN  GENERAL.  §  367. 

pointed  out  and  determined  by  reference  to  a  variety  of  things  having  some 
connection  with  the  land  and  indicating  its  extent. 

365.  Government   Boundaries. — Boundaries  of   our   country  and  of  its 
numerous  subdivisions  are  fixed  and  determined  in  the  same  manner  as  are 
those  of  private  estates.      Whether  located  by  natural  or  artificial  lines  and 
monuments,  their  determination  differs  from  those  of  private  lands  only  in 
their  size,  magnitude,  and  extent.      What  may  be  said  of  private  boundaries 
will  apply  for  the  most  part  to  those  of  the  larger  divisions,  as  towns,  counties, 
and  states.      When  there  are  material  differences  they  will  be  pointed  out. 

The  settlement  or  adjustment  of  a  disputed  boundary-line  between  states 
requires  not  only  ratification  by  the  state,  but  the  assent  of  Congress,  before 
the  line  as  adjusted  can  be  accepted  as  binding.1 

A  public  boundary-line  established  by  authority  of  the  government  is  bind- 
ing on  all  citizens  and  all  private  interests,  and  the  grounds  or  correctness  of 
its  establishment  cannot  be  inquired  into  in  a  suit  between  private  persons.2 

366.  Boundaries  Defined  by  Monuments. — Property  is  generally  described 
with  reference  to  fixed  marks,  lines,  or  stations ;  and  if  these  were  permanently 
fixed  and  definitely  described  there  would  be  fewer  disputes  and  much  less  work 
for  both  surveyors  and  lawyers.     The  great  difficulty  and  expense  of  erecting 
permanent  monuments  has  led  to  the  adoption  of  natural  features,   such  as 
streams,   ponds  and  lakes,   rocks,    and  trees.      These  are  subject  to   changes 
and  decay,  and  their  diversions  and  natural  variation  have  involved  this  subject 
in  complication  and  disorder.     These   changes,   together  with  the  universal 
element  of  ignorance  and  carelessness  characteristic  of  the  human  race,  are 
what  create  the  questions  discussed  in  this  work.     Natural  or  artificial  marks 
which  indicate  the  confines  or  lines  of  division  of  contiguous  estates  are  called 
boundaries. 

The  description  should  not  only  securely  locate  the  lot,  but  it  should  con- 
tain more  than  merely  enough  to  secure  its  location  at  the  present  time.  The 
surveyor  must  look  for  future  changes  and  transformations  to  which  property 
may  be  subjected.  Streets  and  roads  are  straightened  and  made  wider  as 
traffic  increases ;  whole  districts  are  burned  over,  and  when  rebuilt  their  plan 
is  changed  ;  streams  are  constantly  encroaching  or  receding  upon  estates  which 
they  bound ;  neighbors,  in  their  strife  for  gain,  are  making  changes  to  benefit 
themselves  even  to  the  loss  of  adjoiners ;  adjacent  parcels  of  land  are  acquired 
by  one  proprietor,  bounds  destroyed,  and  again  the  whole  is  subdivided.  All 
such  changes  the  surveyor  should  anticipate,  and  meet  the  varying  conditions 
in  his  description  and  location. 

367.  Boundaries — How  Established. — Boundaries  of  land  are  established 
or  defined  in  different  ways,  depending  largely   upon  the  manner  in  which 
titles  to  estates  are  acquired,  viz.,  by  grant  or  by  law.     When  land  is  acquired 

1  New  Castle  Circle  Boundary  Case  (C.  2  Hitchcock  v.  Southern  Iron   &  T.  Co. 

P.),  6  Pa.  Dist.  R.  184.  (Tenn.  Ch.  App.),  38  S.  W.  Rep.  588. 


§368.          OPERATIONS  PRELIMINARY   TO    CONSTRUCTION.  244 

by  grant  the  boundaries  are  defined  in  the  deed  or  patent,  which  description 
is  a  very  essential  part  of  every  grant.  The  description  is  the  part  of  the  deed 
with  which  the  surveyor  has  to  deal.  Its  interpretation,  construction,  and 
application  are  the  first  things  to  be  considered  in  the  field  operations  of 
surveying. 

Land  is  or  should  be  described  by  designating  a  permanent  and  accessible 
starting-point,  which  may  be  easily  found.  A  well-defined  starting-/0z«/,  in 
its  strict  sense,  is  not  a  well-defined  object,  but  some  particular  point  on  that 
object,  as  a  cross  or  crowfoot  on  a  rock  or  a  metal  plate,  or  a  metallic  plug 
inserted  or  securely  fastened  in  a  hole,  or  the  center  of  a  monument,  be  it  a 
tree,  stump,  wall,  or  other  natural  or  artificial  object.  This  starting-point 
should  be  permanent,  fixed,  and  indestructible,  and  it  should  be  accessible  for 
all  the  purposes  of  surveying,  and  adapted  to  the  uses  of  ordinary  surveying 
instruments.  It  should  be  a  point  at  which  the  end  of  a  tape  can  be  held  and 
over  which  a  surveying  instrument  can  be  placed ;  and  if  the  survey  has  to  do 
with  levels,  it  should  be  a  point  upon  which  a  leveling-rod  can  be  placed. 
It  should  be  high  and  dry,  that  it  shall  neither  be  flooded  with  water  nor 
subject  to  the  action  of  frost  and  ice.  It  should  not  be  in  places  of  public 
travel  where,  if  occupied,  it  will  interfere  with  the  rights  of  the  public. 

Probably  no  feature  of  a  description  of  land  is  more  unsatisfactory  to  a 
surveyor  than  the  starting-point.  Without  a  starting-point,  properly  defined 
and  designated,  a  description  is  of  little  use  to  a  surveyor  or  to  any  one  else, 
for  if  the  description  fails  to  define  the  extent  and  locality  of  the  land  it  con- 
veys, then  it  is  invalid  as  a  conveyance  and  no  estate  will  pass  by  the  deed. 

368.  Boundaries  Established  by  Law. — When  land  has  been  acquired  by 
eminent  domain,  by  prescription,  or  by  adverse  possession,  a  determination  of 
the  boundaries  is  a  mixed  question  of  law  and  fact,  and  is  determined  by  the 
circumstances  and  conditions  existing,  which  are  subjects  of  proof  by  the 
parties.  For  convenience,  boundaries  determined  in  this  manner  have  been 
designated  as  those  determined  by  law,  because  they  depend  upon  the 
decisions  of  the  court  and  the  application  of  the  statutes  of  the  different 
states.  When  land  has  been  acquired  by  eminent  domain  its  extent  is 
frequently  determined  by  the  statute  which  gave  the  powers  of  eminent  domain 
to  the  company  exercising  such  powers ;  and  when  the  extent  of  land  taken 
has  not  been  designated,  it  is  usually  provided  in  the  statute  that  it  shall  be 
designated  and  defined  in  the  certain  manner  described,  which  must  be  exer- 
cised strictly  in  accordance  with  the  terms  of  the  statute.  Land  acquired  by 
adverse  possession  will  be  limited  to  that  actually  possessed  and  occupied  for 
the  full  period  of  the  statute  of  limitations.  As  to  just  what  may  be  included 
in  such  possession  and  occupation  is  a  matter  of  law  determined  by  statutes 
and  the  decisions  of  each  state,  which  are  discussed  in  another  part  of  this 
book.*  Boundaries  may  also  be  established  by  the  acts  of  the  owners  of 
*  See  Sees.  511-540  and  671-700,  infra. 


245  BOUNDARIES  IN   GENERAL.  §  370. 

adjoining  estates,  either  by  arbitration  or  by  acquiescence  and  agreement 
upon  the  line  dividing  or  separating  the  lands.  The  determination  of  these 
questions  is  also  a  matter  of  law.* 

369.  Boundaries  Described  by  Natural  Objects. — Boundaries  are  usually 
defined  or  designated  by  monuments.  They  may  be  either  natural  or  artifi- 
cial. The  term  monument  as  ordinarily  applied  is  not  a  boundary,  but  a 
point  or  object  in  the  line  of  the  boundary;  this,  however,  is  merely  a 
technical  interpretation  of  the  word.  A  monument  may  be  a  stream,  or  the 
dividing-line  of  a  watershed,  a  fence,  or  a  ledge  of  rocks,  and  as  such  it  may 
constitute  the  boundary  of  an  estate  or  tract  of  land.  Natural  objects  used 
as  monuments  include  streams,  mountains,  hills,  rocks,  trees,  stumps, 
hedges,  and  other  natural  features  frequently  found  upon  land,  and  these  are 
most  frequently  used  in  the  description  of  estates;  but  they  are  not  for  that 
reason  to  be  considered  the  best.  A  stream  is  not  fixed,  and  its  location  may 
vary  many  feet  from  year  to  year.  A  mountain  or  hill  is  a  very  indefinite 
object,  and  as  a  means  of  locating  a  definite  line  is  utterly  useless  unless  it 
be  used  as  a  far-distant  object,  merely  to  give  the  direction  of  the  line.  Trees, 
marked  or  described,  are  the  most  common  objects  used  to  determine  the 
limits  of  a  tract  of  land,  and  they  are  in  many  localities  the  best  monuments 
to  be  found.  Hedges  are  quite  as  good  when  consisting  of  full -growth  trees 
set  in  a  straight  line  and  sufficiently  described.  Usually  when  such  natural 
objects  are  described  as  monuments  the  center  of  such  objects  is  taken  as  the 
starting-point,  or  point  through  which  or  to  which  the  boundary-line  is 
carried  or  measured,  f 

370.  Boundaries  Described  by  Artificial  Monuments. — Artificial  monu- 
ments include  structures  erected  by  man,  either  expressly  for  the  purpose  of 
designating  points  in  the  boundary  or  for  other  purposes,  and  utilized  to 
describe  the  limits  of  an  estate.  The  former- class  includes  stone  monuments, 
steel  rods,  or  pipes,  and  the  common  "stake  and  stones,"  also  structures 
erected  for  inclosures,  such  as  fences,  walls,  and  curbs.  The  latter  class 
includes  buildings,  bridges,  dams,  and  other  structures,  such  as  embankments, 
levees,  and  sea-walls.  For  permanency  and  accessibility  the  ideal  monument 
is  an  artificial  monument.  If  properly  erected,  it  is  in  every  respect  better 
and  more  satisfactory  to  surveyors,  and  is  less  likely  than  a  natural  monument 
to  lead  to  disagreements  and  controversies  between  the  owners  of  adjoining 
estates.  If  misplaced  or  destroyed,  it  is  more  ordinarily  subject  to  detection 
and  may  be  more  certainly  restored  and  fixed.  It  may  or  may  not  be 
destroyed  or  misplaced;  but  it  is  certain  that  most  forms  of  natural  monu- 
ments are  perishable  arid  movable.  Natural  rocks  in  most  localities  are 
moved  by  frost  and  water,  streams  are  constantly  subject  to  lateral  move- 
ment, trees  decay  and  are  destroyed,  and  hedges  are  subject  to  lateral  growth, 
which  make  the  line  indeterminate.  Artificial  monuments  are  usually  placed 

*  See  Sees.  491-510,  infra.  \  See  Sees.  602-606,  infra. 


§  37°-          OPERATIONS  PRELIMINARY    TO    CONSTRUCTION.  246 

in  fields  or  on  elevations  which  are  least  subject  to  destructive  influences,  and 
they  may  be  further  protected  by  suitable  drainage  and  by  such  artificial 
treatment  as  shall  make  them  practically  imperishable.  A  wall  may  crumble 
and  decay,  but,  if  of  considerable  length,  enough  will  remain  to  determine 
definitely  a  boundary-line.  An  iron  pipe  filled  with  cement  may  rust,  but  the 
cement  will  remain  practically  imperishable.  A  stake  may  rot,  but  the  stones 
piled  around  it  will  be  enduring  witnesses  to  its  location.  For  these  reasons, 
and  because  of  the  additional  fact  that  such  artificial  monuments  are  easily 
accessible,  they  are  to  be  preferred  in  almost  all  instances. 

A  monument  may  be  a  combination,  natural  and  artificial,  as  in  the  case 
of  a  copper  plug  inserted  into  a  hole  drilled  into  a  rock.  The  rock  is  a 
natural  monument,  and  the  copper  plug  is  an  artificial  monument  designating 
the  precise  point  of  the  line  or  angle  of  the  survey.  A  tree  or  several  trees 
may  witness  the  location  of  an  artificial  monument  if  the  distances  and  direc- 
tions from  the  former  be  known.  Such  a  combination  monument  in  which 
natural  objects  are  used  as  witnesses,  while  the  actual  point  is  an  artificial 
object  which  is  easily  accessible  to  persons  and  instruments,  represents  the 
ideal  monument  in  a  survey.  If  the  artificial  monument  be  destroyed  or  mis- 
placed, the  natural  object  affords  a  witness  by  which  it  can  be  relocated,  and 
the  point  where  the  artificial  monument  was  placed  will  afford  a  good  station 
for  surveying  instruments  when  it  becomes  necessary  to  relocate  the  land  at 
the  lines  of  the  survey.  A  tree,  wall,  hedge,  or  rock  is  anything  but  a 
desirable  monument  when  it  is  required  to  do  instrumental  work.  The  work 
in  getting  around  such  monuments  increases  the  labor  and  expense  of 
relocating  the  land,  and  they  are  an  unnecessary  source  of  annoyance  to  a 
surveyor. 


CHAPTER  XXI. 

BOUNDARIES    ON    WATERS.      SHIFTING    CHARACTER.      ACCRE- 
TION,  EROSION,    RELICTION,    AND   RECLAMATION. 

371.  Boundaries   Described  by   Natural  Bodies   of  Waters.  —  Natural 
bodies  of  water  and  streams  are  very  often  designated  as  boundaries  or  divid- 
ing-lines of  estates.     Water  is  of  inestimable  value  to  land.     For  purposes  of 
husbandry,    manufacture,    and    commerce    its    uses    are    manifold.       Lands 
without  streams  or  bodies  of  water  are  barren  and  unproductive  and  of  little 
use  or  value.     We  therefore  find  that  when   land  is  subdivided  both  the 
grantor  and  the  grantee  seek  to  retain  to  their  respective  estates  the  water- 
rights  which  are  to  be  had,  and  the  most  convenient  or  natural  way  to  secure 
them  is  to  make  the  center  of  the  stream,  the  dividing-line,  thus  dividing  its 
uses  and  benefits  between  the  adjoining  owners. 

The  benefits  thus  secured  to  the  estates  are  considered  of  such  great  value 
to  their  owners  as  to  offset  any  losses  and  damages  incident  to  the  unstable 
character  of  a  living  boundary,  for,,  however  much  a  stream  may  encroach, 
and  however  destructive  its  action  upon  the  land,  generally  its  inherent  value 
will  outweigh  the  damages  resulting. 

372.  Boundaries  Defined  by  the  Sea  are  Not  Fixed  and  Permanent. — A 
boundary  upon  the  sea  is  not  a  fixed  and  established  line,  but  is  one  that  is 
subject  to  constant  change,  the  encroachments  of  the  sea  upon  the  land,  and 
the  accretions  that  may  be  gained,   rendering  it  in  almost  every  case  ever- 
changing.      The  generally  poor  and  unproductive  character  of  low  beaches 
and  shores  where  disputes  would  arise  renders  the  question  of  an  accurate 
determination  unnecessary  as  a  rule;  but  at  popular  resorts  on  beaches,  and 
in    cities   where   docks  and   wharves   are    constructed,  .it    at   times  becomes 
important.    A  boundary  located  with  the  most  extreme  care  might  be  changed 
by  the  first  storm  and  heavy  sea. 

By  the  common  law,  if  by  slow,  gradual,  and  imperceptible  degrees  soil 
and  matter  be  cast  up,  deposited,  and  settled,  and  land  thus  slowly  and 
imperceptibly  made,  it  belongs  to  the  shore-owner.  The  law  is  a  just  one 
whether  the  result  of  custom  or  of  privilege  or  of  a  presumed  law.  Such  lands 
being  barren  and  unproductive  are  of  no  value  generally  to  the  government 

247 


§373-          OPERATIONS  PRELIMINARY    TO    CONSTRUCTION.  248 

or  to  any  one  else.  The  adjoining  owner  acquires  title  to  them  on  the  same 
principle  by  which  all  titles  to  lands  have  been  originally  acquired,  viz.,  by 
occupation  and  improvement.  A  narrow  strip  of  land,  almost  imperceptible 
in  breadth,  barren,  and  constantly  liable  to  inundation,  would  remain  perhaps 
forever  barren  and  uncultivated  but  for  this  law.  It  is  the  labor  of  the  person 
who  occupies  it,  who  perhaps  makes  it  secure  by  embankments,  who  by  culti- 
vation and  protection  renders  it  productive,  that  gives  it  value.  The  original 
deposit  constitutes  not  a  tenth  part  of  its  value;  the  other  nine-tenths  are 
created  by  the  person  who  has  occupied  it,  and,  in  the  words  of  Locke,  ' '  The 
fruits  of  his  labor  cannot  without  injury  be  taken  from  him/'  Furthermore, 
the  land  so  acquired  is  but  a  reasonable  compensation  for  losses  that  fre- 
quently happen  from  inundation  and  encroachments  by  the  sea  upon  the 
land,  and  which  these  owners  must  suffer.1* 

373.  Beaches,   Shores,  and  Banks   as   Boundaries. — By   these   terms   is 
understood  the  space  between  high-  and  low-water  mark.2     The  words  are 
synonymous,  and  with  reference  to  the  sea  belong  to  that  portion  of  the  land 
which  is  alternately  covered  and  left  bare  by  the  flux  and  reflux  of  the  tide.3 
This  definition  is  not  inflexible.4     A  devise  or  grant  of  a  beach  for  driftwood 
will  not  include  land  covered  by  extraordinary  inundations,  but  is  limited  to 
the  high-tide  marks  of  ordinary  seasons.5 

The  term  strand  is  synonymous  with  shore,  and  is  that  portion  of  the  land 
lying  between  ordinary  high-  and  low-water  marks.6 

The  bank  of  a  stream  has  been  held  to  be  the  elevations  of  land  which 
confine  the  waters  in  their  natural  channel  when  they  rise  to  the  highest  and 
do  not  overflow  the  banks,  and  not  the  low-water  mark  to  which  the  waters 
recede  at  their  lowest  stage.7 

374.  The  High- and  Low-water  Mark. — The  expression  "water-mark" 
has  been  held  to  mean  the  line  in  which  the  surface  of  the  water  ordinarily 
intersects  the  bank  at  high  or  low  tide.8     The  low-water  mark  has  been  held 
to  be  the  mark  to  which  the  tide  at  its  ebb  usually  flows.     The  point  or  line 
to  which  the  tide  might  ebb  under  an  extraordinary  combination  of  influences 
will  not  form  the  boundary  of  the  beach-owner,  or  enable  the  owner  of  flats 
to  ascertain  satisfactorily  the  extent  which  he  owns.      Much  less  would  other 
persons  employed  in  the  business  of  commerce  and   navigation  be  able  to 

1  Gifford  v.  Yarborough,   5    Bing.   163;       Div.  13. 

St.  Louis  v.  Mo.  Pac.  Ry.  Co.  (Mo.  Sup.),  7  People  v.  Bd.  of  Supervisors,  125  111.  9 

21  S.  W.  Rep.  202.  [1888];    Paine    Lumber    Co.    v.    United 

2  Cutts  v.  Hussy,  15  Me.  241;  Dana  v.  States  (C.  C.),  55  Fed.  Rep.  854.     But  see 
Jackson    St.  Wh.  Co.,  31  Cal.  118  [1866].  Halsey    v.     McCormick,     13    N.  Y.     296, 

3Littlefield  v.  Littlefield,   28    Me.   184;  which  held  "to  the  bank  of  a  stream" 

Starr  v.  Child,  20  Wend.  149.  to  carry  the  grantee  to  low  water.     And 

4Merwin  v.  Wheeler,  41  Conn.  14.  see  Hess  v.  Cheney  (Ala.),  3  So.  Rep.  791 

5  Brown  v.  Lakeman  (Mass.),  17  Pick.  [1888]. 

447-  8Gerrish  v.  Union  Wharf  Co.,  26  Me- 

•Stillman  v.  Burfeind  (N.  Y.),  21  App.  395. 

*  See  Sees.  376-384,  infra  (Accretions). 


249  BOUNDARIES  ON   WATERS.     SHIFTING  CHARACTER.     §374- 

ascertain  with  ease  and  accuracy  whether  they  are  encroaching  upon  private 
rights  or  not  by  sinking  a  pier  or  placing  a  monument.  It  is  reasonable  that 
high-  and  low-water  marks  should  be  ascertained  by  the  same  rule.  The 
place  to  which  tides  ordinarily  flow  at  high  water  becomes  a  well-defined  line 
or  mark  which  at  all  times  can  be  ascertained  without  difficulty.  If  the 
boundaries  of  land  were  extended  to  that  place  to  which  the  lowest  deep  tides 
flowed,  no  certain  mark  or  boundary  could  be  determined.  The  same  would 
hold  if  the  high-water  mark  were  regarded  as  that  line  to  which  the  highest 
spring  tides  might  flow.  The  best  authorities  therefore  hold  that  the  laws 
have  reference  to  the  ordinary  high-  and  low-water  marks;  that  a  line  or 
boundary  at  low-water  mark  becomes  known  and  can  be  satisfactorily  proved, 
and  that  when  once  ascertained  it  will  remain  permanently  established.1 

The  high-water  mark  has  been  held,  as  between  the  riparian  proprietors 
and  the  public,  to  be  the  limit  of  the  river-bed,  and  the  river-bed  has  been 
held  to  be  the  land  which  the  river  occupies  long  enough  to  destroy  the 
vegetation  and  to  destroy  its  value  for  agricultural  purposes.2 

On  the  Mississippi  River  in  Iowa  the  high-water  mark  has  been  held  to 
be  only  the  edge  of  the  bank,  and  not  to  be  the  highest  point  to  which  the 
river  ordinarily  rises  in  times  of  high  water;  and  the  river-bank  is  said  to  be 
that  portion  of  the  earth  which  confines  the  water  in  its  channel,  which  bank 
in  case  of  navigable  streams  is  in  some  states  held  to  belong  to  the  public. 
These  banks  are  frequently  overflowed  in  times  of  freshet,  but  in  determining 
the  boundary-line  between  the  banks  and  the  bed  of  the  stream  freshets  are 
not  to  be  considered.3 

A  grant  of  a  right  to  flood  land  to  the  high-water  mark  of  a  dam  or  pond 
has  been  held  not  to  give  a  right  to  raise  the  dam  above  the  designated  mark, 
and  to  require  that  the  dam  be  so  maintained  that  the  water  will  not  rise 
above  the  mark  in  the  ordinary  state  of  the  stream.4  The  high- water  mark 
was  held  to  mean  the  highest  point  to  which  the  dam  will  raise  the  water  in 
the  ordinary  state  of  the  stream.5 

High-water  mark  in  respect  to  fresh-water  rivers  seems  to  be  undefined 
and  quite  uncertain.  It  may  mean  any  stage  of  the  water  above  its  ordinary 
height,  and  the  line  will  change  with  every  freshet  or  flood  that  may  happen.6 

The  owner  of  land  bordering  upon  waters  where  the  tide  ebbs  and  flows, 
or  upon  inland  unnavigable  waters  where  the  tide  does  not  ebb  and  flow,  has 
a  legal  right  to  possess  and  occupy  the  land  between  high-  and  low-water 
mark,  subject  to  a  right  of  the  state  to  take  the  land  for  its  own  use,  or  to 

1  Gerrish  v.  Union  Wharf  Co.,  26  Me.  3  See  29  Amer.  &  Eng.  Ency.  Law  826. 
395;  Ex  farte  Jennings,  6    Cow.   (N.  Y.)           4  Brady  v.  Blackington,   113  Mass.  245. 
536;  Storer   v.    Freeman,   6    Mass.    435,          5Winkley     v.    Salisbury      Mfg.     jCo. 
Com.    v.    Charlestown    (Mass.),    I    Pick.  (Mass.),  14  Gray  443. 

180.  6  Howard  v.  Ingersoll,  13  How.  (U.  S.) 

2  Houghton  v.  Chicago,  etc.,  R.  Co.,  47       423. 
la.  370  [1877]. 


§  37 S-          OPERATIONS  PRELIMINARY    TO    CONSTRUCTION.  250 

Authorize  it  to  be  taken  by  a  corporation  for  public  use,  and  also  subject  to 
the  right  of  the  public  to  use  it  in  aid  of  navigation.  Such  an  owner  may 
maintain  ejectment  against  an  intruder  upon  lands  along,  partly  above  and 
partly  below  high-water  mark.  l 

Low-water  mark  is  the  point  to  which  the  river  recedes  at  its  lowest  stage. 
High-water  mark  is  the  line  which  the  river  impresses  upon  the  soil  by  cover- 
ing it  for  sufficient  periods  to  deprive  it  of  vegetation  and  to  destroy  its  value 
for  agriculture.2  Low-water  mark  on  the  shore  of  a  lake,  as  a  boundary,  is 
ordinary  low-water  mark,  or  the  level  at  which  the  water  stands  when  free 
from  disturbing  causes.3 

A  river,  therefore,  in  which  the  tide  does  not  ebb  and  flow  has  no  shores 
in  the  legal  sense  of  the  term.  It  has  ripas,  but  no  litores.  The  word  banks  is 
more  properly  employed,  when  speaking  of  rivers  or  streams,  to  designate  the 
land  between  the  margin  of  the  water  of  the  stream  at  low-water  mark  and  at 
high-water  mark.4  While  the  banks  are  a  part  of  the  river,  the  river  does  not 
include  lands  beyond  the  banks  which  are  covered  in  times  of  freshet  or 
extreme  floods,  or  swamps  or  low  grounds  which  are  liable  to  overflow  but 
are  reclaimable  for  meadows  or  agriculture,  or  which,  being  too  low  for 
reclamation,  though  not  always  covered  with  water,  may  be  used  for  cattle  to 
range  upon,  as  natural  or  uninclosed  pasture.5 

The  bed  of  a  river  is  a  definite,  and  commonly  a  permanent,  channel,  and 
is  the  characteristic  which  distinguishes  the  water  of  the  river  from  mere 
surface  drainage,  and  from  water  percolating  through  the  strata  of  the  earth.5 
To  better  understand  the  law  of  boundaries  on  banks  and  shores,  a  brief 
survey  of  the  law  in  respect  to  the  property  in  beaches  will  be  necessary. 

375.  Property  in  Beaches,  Shores,  and  Banks, — The  law  of  boundaries 
on  beaches  and  shores  does  not  differ  materially  from  the  law  of  boundaries 
on  other  waters  and  ways,  except  where  modified  by  the  common  law,  by 
early  English  customs,  and  by  restrictions  required  by  the  crown  or  the 
government.  The  control  of  the  sea  and  its  shores,  of  bays  and  navigable 
streams,  and  of  large  lakes  and  ponds,  is  retained  by  the  crown  or  state,  that 
it  may  defend  its  coasts,  promote  commerce,  and  encourage  the  growth  and 
development  of  its  cities  and  manufactories.  Fortifications  must  be  erected 
to  protect  it  from  invasion;  lights  constructed  to  assist  navigation  and 
promote  commerce;  harbors  must  be  deepened  and  inclosed,  and  made  secure 
for  shipping;  natural  streams  deepened  and  protected  for  transportation  of 
crops  and  other  products  from  the  interior;  great  lakes  and  ponds  diverted 
into  vast  systems  of  water-supply  for  agricultural,  manufacturing,  and 
domestic  purposes. 

1  Sisson  v.  Cummings,  35  Hun  22,  106       (Wis.),  69  N.  W.  Rep.  990. 

N.  Y.  56.  *  Starr  v.  Child,  20  Wend.  149. 

2  Paine    Lumber  Co.  v.  United    States  5  Paine  Lumber  Co.  v.  United  States 
(C.  C.),  55  Fed.  Rep.  854.                                     (C.  C.),  55  Fed.  Rep.  854. 

3Slauson    v.    Goodrich     Transp.    Co. 


251          BOUNDARIES   ON    WATERS.     SHIFTING    CHARACTER.      §  376. 

The  government  must  have  free  access  and  exclusive  control  of  these  im- 
portant natural  features  of  its  domain.  Delays  and  restrictions  might  bring 
disaster  and  ruin  to  the  country,  and  it  is  for  these  probable  reasons  that  we 
find,  at  common  law,  the  sea,  the  shore,  and  all  navigable  streams,  and  the 
soil  beneath  them,  declared  to  be  the  king's.  The  same  necessity  requires 
our  own  republican  government  to  maintain  the  same  rights  that  the  common 
law  has  bequeathed  to  it.  It  may  therefore  be  expected  that  the  boundaries 
of  these  features  will  be  restricted  to  such  limits  as  shall  not  encroach, 
encumber,  or  restrain  the  free  public  use  and  enjoyment  of  such  property. 
We  therefore  find  that  the  law  of  boundaries  upon  bodies  of  water  that  are 
navigable,  or  of  such  extent  as  to  be  of  great  public  benefit,  is  different  from 
that  upon  smaller  and  less  important  streams  and  bodies  of  water. 

This  property  is  not  directly  vested  in  the  Federal  Government;  but 
generally  the  state  is  the  exclusive  proprietor  and  owner  of  all  the  soil  upon 
its  maritime  borders  ordinarily  washed  by  the  tides,  subject  to  any  lawful 
grants  of  the  soil  by  the  state  or  by  the  sovereign  power  which  governed  its 
territory  before  the  declaration  of  independence. * 

376.  Beaches  and  Shores  Described  as  Boundaries. — At  common  law  the 
sea  that  flows  around  our  coasts  and  all  the  land  to  which  no  individual  has 
acquired  a  right  by  occupation  and  improvement  belongs  to  the  sovereign 
power,  the  government.2  The  boundary  of  land  on  a  common-law  navigable 
stream,  i.e.,  or:e  in  which  the  tide  ebbs  and  flows,  is  the  high-water  mark  on 
the  shore.3 

As  Mr.  Tyler  hi  his  book  on  Boundaries  concludes,  after  an  able  discus- 
sion of  the  authorities  on  this  subject:  "  It  is  the  settled  principle  in  the  laws 
of  this  country  and  of  England  that  exclusive  rights  of  owners  of  land 
bounded  by  the  sea,  or,  which  is  the  same,  on  navigable  rivers  where  the  tide 
ebbs  and  flows,  extend  only  to  high-water  mark,  and  that  the  shore  below 
common,  but  not  extraordinary,  high-water  mark  belongs  to  the  state  as 
trustee  for  the  public.  In  England  the  crown,  and  in  this  country  the  people, 
have  the  absolute  proprietary  interest  in  the  shore  of  these  waters,  though  it 
may  by  grant  or  prescription  become  private  property.  The  grantee  of  such 
shore  does  not  take  a  fixed  freehold,  but  one  that  shifts  as  the  shore  recedes 
or  advances.4  Whether  the  sovereign  power  of  the  state  can  grant  to  indi- 
viduals a  freehold  interest  in  such  shore  and  submerged  soil  is  a  question. 
Franchises  for  the  enjoyment  of  fishing,  wrecking,  ferries,  and  mining  are 
frequent,  but  to  enjoy  these  does  not  require  an  absolute  ownership  of  the 
soil.5  They  are  held  by  this  sovereign  power  for  the  erection  of  public 
defenses  and  for  the  uses  of  navigation,  and  for  the  benefit  and  enjoyment  of 
the  public,  as  for  fishing,  bathing,  etc.6 

1  Tyler  on  Boundaries,  32.  Supp.  681;  Stillman  v.  Burfeind  (N.  Y.), 

2  Gifford  v.  Yarborough  (Eng.),  5  Bing.       21  App.  Div.  13. 

163  [1828].  4  Tyler's  Law  of  Boundaries  39,  40. 

3  2  Amer.   &    Eng.   Ency.  Law  504;  De  5  See  Tyler  on  Boundaries  36-40. 
Lancey    v.     Piepgras    (Sup.),    17     N.    Y.           6  See  Angel  on  Tide-waters  158. 


§377-          OPERATIONS  PRELIMINARY    TO    CONSTRUCTION.  2 $2 

In  Oregon  it  has  been  held  that  the  title  to  land  over  which  the  tide  ebbs 
and  flows  is  in  the  state,  and  a  conveyance  thereof  vests  the  absolute  title  in 
the  grantee. l 

In  Maine  by  statute  and  in  Massachusetts  by  statute  (1647)  it  is  the  low- 
water  mark  that  bounds  shore-owners.  Therefore,  calls  in  a  deed  which 
describe  a  parcel  of  land  on  the  seashore  as  running  "to  the  water,"  and 
thence  "  by  the  water,"  carry  the  grant  to  low-water  mark.2  The  title  of  an 
owner  of  uplands  in  the  adjoining  flats  extends,  under  the  Massachusetts 
Colony  ordinance  of  1647,  where  the  tide  ebbs  and  flows  less  than  100  rods 
to  the  extreme  low-water  mark.3  In  Louisiana  the  land  between  the  levee 
and  the  river,  though  submerged  at  the  high  stage  of  the  river,  is  the  property 
of  the  riparian  proprietor,  subject  to  public  uses.4  In  New  York  state  on  the 
Harlem  River  a  description  of  a  tract  of  land  naming  the  river  as  its  boundary 
does  not  necessarily  include  land  lying  between  high-  and  low-water  mark  on 
said  river.5 

377.  Streams  and  Rivers  as  Boundaries.  Effects  of  Erosion  and  Accre- 
tion.*— The  shifting  character  of  boundaries  is  not  confined  to  large  bodies 
of  water,  but  is  equally  characteristic  of  streams,  both  large  and  small.  The 
crooked  sinuosities  of  natural  streams  make  them  subject  to  side  currents  and 
consequent  eddies  that  are  constantly  washing  away  soil  in  one  place  and 
depositing  it  in  another.  The  scouring  and  carrying  power  of  water  is  little 
appreciated  by  persons  who  do  not  belong  to  the  scientific  professions.  If 
one  consider  that  the  erosion  of  water  increases  as  the  square  of  the  velocity, 
and  that  the  transporting  energy  increases  as  the  sixth  power  of  the  velocity  of 
the  current  of  the  stream,  he  will  better  appreciate  its  destructive  influence. 
A  simple  illustration  will  explain  its  power  to  the  untutored.  If  the  ordinary 
flow  of  a  stream  be  two  miles  an  hour  and  in  times  of  flood  it  be  increased  to 
six  miles,  its  power  of  erosion  becomes  twice  as  great  and  its  power  of  trans- 
portation becomes  seven  hundred  and  twenty-nine  times  what  it  was  at  two 
miles  an  hour. 

This  erosion  is  usually  accompanied  by  accretion  to  the  opposite  side  of 
the  stream,  and  by  the  continued  action  of  the  water  the  stream  encroaches 
upon  one  side  and  recedes  from  the  other.  This  sidewise  movement,  though 
slow  and  imperceptible  for  a  day,  may  amount  to  considerable  in  a  year,  and 
to  many  hundred  feet  in  a  century.  In  fact,  the  fertile  flats  of  most  valleys 
are  the  result  of  this  action  of  streams.  If  a  stream  is  described  as  a 

1  Bowlby  v.  Shively  (Or.),  30  Pac.  Rep.       (Mass.),  31  N.  E.  Rep.  703. 

154-160.    '  3Sewall  Cord  Co.  v.  Boston  W.  P.  Co., 

2  Babson  v.  Taintor  (Me.),  10  All.  Rep.       147  Mass.  61  [1888]. 

63  [1887];  Sewall  Cord  Co.  v.  Boston  W.  4  Mathis  v.  Board  of   Assessors  (La.), 

P.   Co.   (Mass.),   16  N.   E.   Rep.  782,   147  16  So.  Rep.  454. 

Mass.  61  [1888].  As  to  what  is  low-water  5  Jarvis  v.  Lynch  (Sup.),  36  N.  Y.  Supp. 

mark,  see  Tappan   v.   Boston  W.   P.   Co.  220. 

*  See  Sec.  372,  supra. 


253  BOUNDARIES   ON    WATERS.     SHIFTING    CHARACTER.      §  37/. 

boundary,  that  boundary  is  shifting  and  will  follow  any  gradual  and  imper- 
ceptible movement  of  the  stream,  whether  of  recession  or  of  encroachment  of 
the  water.  This  is  equally  true  whether  the  stream  be  navigable  or  non- 
navigable,  or  whether  such  movement  be  solely  due  to  natural  causes,  or  to 
such  causes  influenced  and  assisted  by  artificial  works.1 

Strictly,  accretion  is  the  process  of  gradual  and  imperceptible  increase  of 
land  caused  by  the  deposit  of  earth,  sand,  or  sediment  thereon  by  contiguous 
waters.  The  increase  should  be  so  gradual  that  one  cannot  judge  how  much 
is  added  in  one  moment  of  time.  Alluvion  is  the  addition  made  to  land  by 
the  washing  of  the  sea  or  a  navigable  river  or  other  stream,  where  the 
increase  is  so  gradual  in  its  progress  that  it  cannot  be  perceived  how  much  is 
added  in  any  moment  of  time.  Alluvion  comprises  soil  and  other  things, 
such  as  marine  and  water  plants,  seaweed,  etc.,  which  are  washed  up  on  the 
shores  of  the  stream  by  the  action  of  water.  In  determining  the  law  of 
accretion  it  does  not  matter  whether  the  waters  be  navigable  or  unnavigable, 
fresh  or  salt,  or  whether  they  be  affected  by  tide  or  current.  Such  questions 
as  to  whether  they  are  navigable,  salt,  or  affected  by  the  tide  are  considered 
only  in  determining  the  ownership  of  the  shores,  bed,  or  bottom  of  streams. 
Some  authors  have  stated  that  the  accretion  or  alluvion  must  be  the  result  of 
the  natural  action  of  the  water;  but^his  is  not  the  law  in  general,  for  it  is 
now  pretty  well  settled  that  the  addition  by  water  and  alluvion  may  be  due 
to  the  combined  influence  of  natural  and  artificial  causes.2 

The  increase  or  accretion  must  be  slow  and  imperceptible;  and  the  test 
as  to  whether  an  addition  is  gradual  and  imperceptible  is  that,  though  the 
witnesses  may  see  from  time  to  time  that  progress  has  been  made,  they  could 
not  perceive  it  while  it  was  going  on.3  In  all  cases  of  gradual  accretion  which 
cannot  be  ascertained  from  day  to  day,  the  land  so  gained  goes  to  the  person 
to  whom  the  land  belongs  to  which  the  accretion  is  added.4 

In  this  country,  on  swiftly  flowing  streams,  especially  in  times  of  flood, 
the  laws  of  accretion  apply  even  when  the  change  made  by  the  force  of  the 
current  can  be  noticed  while  it  is  going  on.5  The  law  of  accretion  applies  to 
the  Missouri  River  notwithstanding  that,  owing  to  the  swiftness  of  its  current 
and  the  softness  of  its  banks,  the  changes  are  more  rapid  and  extensive  than 
in  most  other  rivers.6  Where  the  middle  of  a  stream  is  the  boundary-line  of 
land,  and  the  water  undermines  the  bank,  and  the  soil  caves  in  and  mixes 
with  the  water  and  is  washed  away,  the  owner  must  stand  the  loss;  and  the 
middle  of  the  new  channel  will  be  the  boundary.7  The  fact  that  rapid 

1 1  Amer.  &  Eng.  Ency.  Law  137;  Denny  W.  327. 

v.  Cotton  (Tex.),  22  S.  W.  Rep.  122.  5  Denny    v.   Cotton   (Tex.),    22   S.    W. 

2 1  Amer.  &  Eng.   Ency.  Law  (2d  ed.)  Rep.  122. 

467-468.  6  Nebraska  v.   Iowa,  12  Sup.  Ct.  Rep. 

3 County   of   St.    C.    v.   Livingston,    23  396. 

Wall.    46:  Mulry  v.    Norton,   100   N.  Y.  7  Bouvier  v.  Stricklett  (Neb.),  59  N.  W. 

424  [1885].  Rep.  550. 

^Matter  of  Hall  &  Selby  Ry.,   5  M.  & 


§378. 


OPERATIONS  PRELIMINARY    TO    CONSTRUCTION. 


254 


changes  in  the  banks  of  the  Missouri  River  are  constantly  going  on,  and 
that  forty  acres  of  land  have  been  added  to  an  adjoining  tract,  will  not 
overthrow  an  averment  that  the  increased  territory  was  due  to  accretion, 
and  that  it  was  by  an  imperceptible  increase  when  it  was  twenty  years  in 
forming. 1 

The  laws  of  accretion  are  so  firmly  established  that  it  is  followed  in  all 
cases  and  gives  rise  to  some  curious  problems.  If  land  be  owned  by  A,  B, 
and  C,  as  shown  in  Fig.  a,  and  the 
stream  be  named  as  the  boundary 
between  B  and  C,  and  the  stream 
encroaches  upon  B  until  B's  land 
is  entirely  worn  away  and  then  the 
stream  subsequently  works  its  way 
back  to  its  former  place,  the  ques- 
tion arises  as  to  who  owns  the 
original  estate  of  B.  It  is  con- 
tended that  C  would  own  it.2 

If  the  sea  slowly  recedes  or  the 

land  is  gradually  elevated,  the  same  principle  applies,  and  the  land  belongs 
to  the  proprietor  to  whose  land  the  gain  is  made; 3  and  where  the  sea,  instead 
of  retreating,  encroaches  upon  the  land,  the  property  gradually  submerged 
belongs  to  the  state.4 

378.  Accretions  go  to  Riparian  Owners. — The  title  to  alluvion  vests 
exclusively  in  riparian  proprietors.5  To  claim  title  to  accretions  as  such, 
there  must  be  actual  contiguity;  any  separation  of  the  claimant's  land  from 
the  alluvion  by  the  land  of  another  will  defeat  his  claim.6  To  be  a  riparian 
owner,  his  land  must  touch  the  shore  of  the  lake  or  stream,7  or  he  must 
own  the  bed  of  the  stream  or  body  of  water  in  which  the  alluvion  is  depos- 
ited.8 

Where  land  which  formerly  fronted  upon  a  river  was  conveyed  by  deed  by 
its  section  number,  it  passed  title  to  any  land  which  had  been  added  thereto 
by  accretion.9  When  described  by  lot  number,  referring  to  the  official  plot 
of  the  government  survey,  it  passes  all  accretions  to  the  lot  up  to  the  date 
of  the  conveyance. 10 


FIG. 


1  East   Omaha    Ld.    Co.  v.  Jeffries,  40 
Fed.  Rep.  386. 

2  Price  v.  Hallett  (Mo.),  38  S.  W.  Rep. 
451;  Welles  v.    Bailey  (Conn.),    10   All. 
Rep.  565  [1887]. 

3  i  Amer.  &  Eng.   Ency.  Law  137,  and 
fasts  cited. 

4  Wilson  v.  Shiveley,  n  Oregon  215. 

5  State  v.  Buck  (La.),  15  So.  Rep.  531. 

6 1  Amer.  &  Eng.   Ency.  Law  138,  and 
gases  cited. 

7  Stark    v.    Miller   (Mich.),    71    N.    W. 


Rep.  876;  semble,  Mulry  v.  Norton,  100 
N.  Y.  424.  See  Chamberlain  v.  Heming- 
way, 63  Conn.  i. 

8  On  this  subject  of  rights  to  land  made 
by  or  resulting  from  accretions,  reliction, 
and  avulsion,    see  45   Cent.    Law    Jour. 
148. 

9  Tappendorf  v.  Downing  (CaL),  18  Pac. 
Rep.  247  [1888]. 

10  Jeffries  v.  E.  Omaha  Ld.  Co.,  10  Sup. 
Ct.  Rep.  518. 


255  BOUNDARIES   ON    WATERS.     SHIFTING    CHARACTER.      §3/8. 


A's  LAND 


pIG 


By  Revised  Statutes  of  the  United  States,  §  2396,  it  is  provided  that  in  those 
portions  of  a  fractional  township  where  intermediate  or  interior  corners  have 
not  been  fixed  the  boundary-lines  shall  be  ascertained  by  running  from  the 
established  corners  to  a  watercourse,  etc.  In  construing  this  statute  it  was 
held  that,  in  surveying  a  lot  bordering  on  a  river,  the  watercourse  became  the 
boundary,  and  continued  so  no  matter  how  much  it  shifted  by  accretion,  and 

that  a  conveyance  of  the  lot  passed 
title  to  all  land  accreted  to  such 
lot.1  Whether  or  not  accretions 
to  land  of  one  of  two  adjoining 
riparian  owners  and  which  gradu- 
ally extends  in  front  of  the  land  of 
the  other  (Fig.  b)  belongs  to  the 
former,  to  whose  land  it  is  added, 
depends  largely  upon  whether  it 
be  a  navigable  or  a  non-navigable 

stream,  i.e.,  whether  the  bed  of  the  stream  belongs  to  the  riparian  owners  or 
to  the  state  or  to  the  public.      If  the  bed  belong  to  the  state  or  the  public, 
then  the  accreted  land  will  belong  to  the  riparian  owner  to  whose  land  it  is  « 
added.2* 

When,  therefore,  land  on  a  navigable  stream  was  gradually  and  impercept- 
ibly washed  away,  and  the  place  where  it  had  been  remained  for  many  years 
the  bed  of  the  river,  the  riparian  owner  does  not  acquire  title  by  accretion  to 
new  land  subsequently  formed  within  his  original  boundaries,  unless  its  forma- 
tion began  at  high-water  mark.3  He  cannot  claim,  as  accretion,  land  beyond 
a  well-defined  slough,  40  to  60  yards  wide,  which  was  the  old  channel  of  the 
river,  and  through  which  water  runs  at  certain  seasons  deep  enough  for  naviga- 
tion.4 Lands  made  and  formed  between  the  shore  line  and  the  main  channel, 
whether  such  lands  consisted  of  gradual  accretions  or  islands  formed  in  the 
river,  do  not  always  belong  to  a  riparian  owner  because  they  become  attached 
to  his  shore  line.5 

If  the  land  were  an  island  formed  in  the  Missouri  River,  and  the  river 
channel  ran  permanently  between  said  island  and  plaintiff's  land  as  it  was 
originally  surveyed  by  the  government,  and  afterwards  said  channel  was  filled 
up  by  overflow  and  deposit  of  sand  and  mud,  so  that  the  mainland  and  said 
island  became  united,  the  island  would  not  be  an  accretion  to  plaintiff's 
land.6 


1  East  Omaha  Ld.  Co.  v.  Jeffries,  40 
Fed.  Rep.  386. 

2Crandall  v.  Allen  (Mo.  Sup.),  248. 
W.  Rep.  172;  Minton  v.  Steele  (Mo.),  28 
S.  W.  Rep.  746. 

3  Wallace  v.  Driver  (Ark.),  33  S.  W. 
Rep.  641. 


*Crandali  «/.  Smith  (Mo.  Sup.),  36  S. 
W.  Rep.  612. 

5Hahn  v.  Dawson  (Mo.  Sup.),  36  S. 
W.  Rep.  233. 

6Hahn  v.  Dawson  (Mo.  Sup.),  36  S. 
W.  Rep.  233. 


*  See  Sees  424-426,  infra. 


§379-          OPERATIONS  PRELIMINARY    TO    CONSTRUCTION.  2$6 

An  island  in  a  lake  which  existed  as  such  prior  to  an  early  survey  by  the 
government,  but  which  was  not  then  platted,  and  which  by  process  of 
accretion  has  become  joined  by  a  spit  to  the  neighboring  lot,  is  not  a  portion 
of  that  lot.1 

However,  when  land  was  bounded  by  a  stream  in  which  was  a  sand-bar 
covered  during  the  greater  part  of  the  year  with  water,  this  alluvion  sand- 
bar was  held  to  belong  to  the  riparian  owner  even  though  the  distance  from 
the  bar  across  the  water  to  the  land  was  half  a  mile  when  it  was  uncovered, 
and  that  the  government  surveyor  in  running  the  lines  of  the  bank  did  not 
survey  it.2  This  case  must  be  explained  by  the  fact  that  the  riparian  owner 
was  regarded  as  the  owner  of  the  bed  of  the  stream,  which  is  in  accord  with  the 
civil  law. 

The  party  claiming  the  accretion  must  have  been  the  owner  of  the  land 
when  the  suit  was  begun,  and  the  land  sued  for,  or  some  part  of  it,  must  have 
been  formed  onto  and  against  the  lands  owned  by  plaintiff  by  the  deposit  of 
sand  and  mud.3 

An  unauthorized  agreement  by  the  lessees  of  one  riparian  owner  with  the 
adjoining  riparian  owner  as  to  the  division-line  between  the  holdings  in  the 
shallow  waters  of  a  navigable  bay  is  void.4  A  lease  of  accretions  by  the  lessor 
in  a  former  lease  to  another  of  land  bounded  by  the  bank  of  a  river,  executed 
after  the  first  lease  and  before  a  grant  in  fee  to  the  lessee  therein,  does  not 
give  the  second  lessee  a  reversion  in  the  accretions,  but  the  fee  therein  vests- 
in  the  first  lessee  under  his  grant.5  A  lease  for  99  years  of  land  described  as 
bounded  by  the  bank  of  a  river  includes  future  accretions.6 

379.  Accretions  to  Public  Streets  and  Ways.— Accretions  to  a  public 
highway  or  land  reserved  for  public  use  partakes  of  the  same  nature,  and  the 
city  holds  title  to  it  subject  to  the  same  uses  and  conditions.  The  title  to  it 
may  not  be  granted  to  a  railroad  company,  though  a  right  of  way  may  be.7 
Accretions  at  the  foot  or  end  of  a  street  are  considered  a  continuation  of  the 
street,  and  adjoining  owners  cannot  close  up  the  space  between  the  river  and 
the  end  of  the  street,  although  by  statute  they  can  erect  piers  and  bulwarks.8 

In  Minnesota  the  rule  that  abutting  owners  take  to  the  center  of  a  highway 
does  not  seem  to  hold  where  there  is  no  abutting  owner  on  the  opposite  side 
of  the  way,  as  where  the  road  runs  along  the  shore  of  a  navigable  lake.  Where 
occupants  of  government  lands  had  caused  the  same  to  be  platted  as  a  town 

lBigelow  -v.  ~ (la.),  52  N.  W.  Kehr  (111.  Sup.),  29  N.  E.  Rep.  553. 

Rep.  124.  6Cobb  v.   Lavalle,  89  111.  331;   Rutz  v. 

2Stephenson  v.  Goff  (La.),  TO  Rob.   99.  Kehr  (111.  Sup  ),  29  N.  E.  Rep.  553. 

But  see  63  Tex.   330,  and  Railroad  Com-  7  Cook  v.   City  of   Burlington,  30  Iowa 

pany  v.  Schurmer,  7  Wall.  272  [1868].  94;  St.  Louis  v.  Mo.    Pac.  Ry.  Co.  (Mo.), 

3  Hahn   v.   Dawson   (Mo    Sup.),    36  S.  21  S.  W.  Rep.   202.     And  see  Godfrey  v. 
W.  Rep.  233  Altoona,  12  111.  29. 

4  Northern    Pine-land    Co.    v.    Bigelow  8  People  v.  Lambier,  .5  Denio  (N.  Y.)9; 
(Wis.),  54  N.  W.  Rep.  496.  Steers  v.  Brooklyn,  101   N.  Y.   51.     And 

5  Haps  v.   Hewitt,  97  111.  498;  Rutz  v.  see  i  Amer.   &  Eng.  Ency.  Law  139. 


2 $7          BOUNDARIES   ON    WATERS.     SHIFTING    CHARACTER.      §380. 

site,  with  a  street  along  the  shore  of  a  navigable  lake,  and  a  lot  fronting  upon 
the  street  before  mentioned  had  been  conveyed,  describing  the  same  in  accord- 
ance with  the  town  plat,  it  was  held  that  the  fee  title  to  the  entire  street  to 
low-water  mark,  including  all  riparian  rights,  passed  to  the  grantee,  and  that 
on  a  conveyance  by  him  by  the  same  description  it  passed  to  his  grantee.1 
The  soil  of  public  roads  belongs  to  the  owner  of  the  land  on  which  they  are 
made ;  and  in  case  of  roads  bordering  navigable  streams,  that  ownership  is 
unimpaired  except  to  the  extent  of  the  servitude  imposed  by  law,  which 
confines  the  servitude  to  uses  and  works  of  a  public  character.5* 

The  Missouri  courts  have  held  differently,  and  that  the  owner  of  a  city  lot 
bounded  on  one  side  by  a  street  which  is  located  along  a  river  is  not  entitled,  as 
a  riparian  proprietor,  to  land  formed  by  accretions  on  the  opposite  side  of  the 
street.3 

Where  a  riparian  owner  has  dedicated  a  highway  along  a  river  to  the  public 
and  has  not  reserved  a  strip  between  the  highway  and  the  river,  the  accretions, 
will  become  public  and  be  subject  to  public  uses.  If  the  strip  were  marked  on 
the  plan  "  Quay  "  or  "  Dock,"  or  there  were  other  words  showing  an  intent 
to  dedicate  it  to  the  public,  that  fact  would  defeat  the  proprietor's  claims 
to  accretions.4 

380.  Ownership  of  Land  Re-formed  upon  a  Site  Washed  Away. — If  land 
be  washed  away  and  then  re-formed  upon  the  same  subsoil,  it  belongs  to  the 
former  owner  if  he  can  re-establish  his  old  boundaries  ;  but  if  an  island 
has  been  washed  away  and  accretions  are  deposited  to  and  against  the  mainland, 
then  they  belong  to  the  proprietor  of  the  mainland  and  cannot  be  claimed  by 
the*  former  proprietor  of  the  island  over  whose  site  they  are  formed.5*  If  the 
mainland  has  been  carried  away  and  an  island  has  been  formed  over  the 
original  site  of  the  mainland,  it  belongs  to  the  owner  of  the  former  site,  though 
the  mainland  was  a  fractional  part  of  a  section.6 

The  title  to  land  that  is  overflowed  and  subsequently  reappears  remains  in 
the  original  owner,  if  the  original  boundaries  can  be  identified,  no  matter  how- 
long  it  may  have  been  submerged.  The  same  is  held  of  an  island  that  has  dis- 
appeared and  afterwards  reappears.  For  a  proprietor  to  lose  his  title  to  land  by- 
erosion  or  submergence  the  land  must  be  transported  beyond  the  owner's. 
boundary.7  This  is  true  even  when  the  land  is  washed  away  by  a  sudden  and 

1Wait  v.  May  (Minn.),  51  N.  W.   Rep.  chaises.  Maginnis  (La.),  n  So.  Rep.  715. 
471;  Municipality    v.    Cotton    Press,    18  *  Municipality  v.  Cotton  Press,   18  La. 

La.  122;  I  Amer.  &  Eng.  Ency.  Law  139.  122;  Wetmore   z/.   Atlantic,  etc\,  Co.,  37 

3  Bradley  v.   Pharr  (La.),    12  So.   Rep.  Barb.  70;  Banks  v.  Ogden,  2  Wall.  57. 
618.  5  Buse  v.  Russell,  86  Mo   209. 

8  Lebeaume  v.   Poctlington,  21   Mo.  36;  6  Cox  v.  Arnold  (Mo.),  31  S.  W.   Rep. 

Smith    v.    Public    Schools,    30    Mo.   294;  592. 

Ellinger  v.   Missouri  Pac.   Ry.  Co.   (Mo.  7  Mulry  v.  Norton,  100  N.  Y.  424  [1885]; 

Sup.),    20    S.    W.    Rep.    800.     But   see    a  Minton   v.    Steele  (Mo.    Sup.),   28  S.  W. 

Louisiana      case — Succession     of      Dela-  Rep.  746. 

*  See  Sec.  377,  p.  254,  diagram,  supra. 


OPERATIONS   PRELIMINARY    TO    CONSTRUCTION. 


258 


perceptible  process.1  The  fact  that  land  is  not  first  made  on  the  shore  or  bank 
is  not  material  to  the  title  of  the  adjacent  owner,  provided  that  the  deposits 
ultimately  blend  with  the  adjacent  land  by  the  action  of  the  river.2 

When  a  portion  of  defendant's  land  was  washed  away,  and  afterwards  the 
land  was  re-formed  within  the  limits  of  such  land,  the  land  so  formed  does  not 
become  the  land  of  defendant  if  it  consist  of  accretions  to  plaintiff's  land.  Such 
accretions  belong  to  plaintiff  if  they  began  upon  his  land.3 

Where  the  lands  of  original  adjoining  upland  owners  P  and  D  became  sub- 
merged by  a  change  in  the  bed  of  the  river  (Fig.  c),  after  which  the  river 
receded    from    P's    land    and    en- 
croached on  the   land  of  D  until  it 
passed  the  original  boundary,  it  was 
held    that    by    the   submersion    the 
original  line  ceased  to  exist,  and  P 
became  a    riparian  owner,   with  all 
the  accompanying  rights  of  accretion 
and  reliction. 

Whether  the  river  was  navigable 
or  non-navigable,  P  was  held  entitled 
to  all  accretion  to  his  land,  though 
it  extended  in  the  first  case  beyond 
the  original  high-water  mark,  or  in 
the  second  case  beyond  the  original 
center  of  the  stream.  Even  though 

a  portion  of  P's  original  lot  last  submerged  was  formerly  an  upland  corner,  it 
was  held  that  nis  rights  to  accretion  were  not  limited  to  "his  original  boundaries^ 
but  included  all  accretions  within  lines  drawn  from  the  termini  of  his  upland 
boundaries,  at  right  angles  with  the  general  course  of  the  stream,  although  it 
was  thus  made  to  include  land  originally  belonging  to  D.4 

Whether  or  not  land  formed  in  the  changing  bed  of  a  river  is  an  accretion 
to  a  tract  formerly  on  the  shore  of  a  river,  or  whether  it  is  newly  made  land 
unattached  thereto,  is  a  question  for  the  jury.5 

381.  Accretions  to  Lands  upon  Lakes,  Ponds,  and  Harbors. — The  same 
rules  of  accretion  and  reliction  apply  to  lands  upon  natural  lakes  and  ponds, 
and  for  the  same  reasons,  unless  the  description  shows  an  express  intention  to 
the  contrary.  Owners  of  land  upon  lakes,  whether  navigable  or  not,  have  title 
to  land  left  dry  by  the  gradual  and  imperceptible  recession  of  the  waters.6  An 


FIG.  c. 


1  Wallace  v.  Driver  (Ark.),  33  S.  W. 
Rep.  641. 

2Minton  v.  Steele  (Mo.  Sup.),  28  S.  W. 
Rep.  746. 

3Naylor  v.  Cox  (Mo.  Sup.),  21  S.  W. 
Rep.  589;  Price  v.  Hallett  (Mo.  Sup.), 
38  S.  W.  Rep,  451. 


4  Welles  v.  Bailey  (Conn.),  10  Atl.  Rep. 
565  [1887];  Price  v.   Hallett  (Mo.  Sup.), 
38  S.  W.  Rep.  451. 

5  Price  v.  Hallett  (Mo  ),  38  S.  W.   Rep. 
451;  Bennett  v.  Nat.  Starch  Co.   (Iowa), 
72  N.  W.  Rep.  507,  deposits  from  sewers. 

6  i  Amer.  &  Eng.  Ency.  Law  137. 


259          BOUNDARIES   ON    WATERS.     SHIFTING    CHARACTER.      §  381. 

exception  has  been  made  in  Louisiana  in  the  case  of  Lake  Pontchartrain,  where 
it  was  held  that  accretions  belonged  only  to  lands  adjacent  to  streams  and 
rivers.  This  is  not  the  universal  law,  and  is  believed  to  be  the  only  exception  to 
the  general  rule.1  Land  reclaimed  from  the  water  of  a  harbor  comes  within 
the  same  rule  and  belongs  to  the  owner  of  the  adjoining  property.2 

Property  rights  in  accretions  depend  upon  the  common -law  right,  for  reasons 
before  stated  ;  and  for  the  further  reason  that  a  stream,  beach,  lake,  or  pond 
is  of  so  great  benefit  and  value  to  an  estate  that  encroachments  upon  one 
owner  and  consequent  loss  of  land  are  regarded  by  the  law  as  trifling, 
compared  to  the  loss  of  a  stream  or  body  of  water.  Hence  the  rule  that  a 
proprietor  follows  the  water  however  much  it  recedes  or  changes,  if  it  be 
gradual  and  by  imperceptible  degrees.  He  is  not,  therefore,  to  be  deprived  of 
it  "because  the  land  has  been  added  by  artificial  means.  This  is  true 
if  the  land  is  added  by  filling,  and  the  title  to  the  land  so  filled  and  ac- 
quired is  not  from  any  grantor,  but  directly  from  the  state.3  Where  harbor 
lines  and  limits  have  been  established  by  the  state,  it  gives  an  implied 
permission  to  all  coterminous  owners  to  fill  out  to  such  line,  but  no  further.4 
It  seems  from  the  same  cases  that  natural  accretion  is  limited  to  the  harbor- 
line.  This,  when  established,  defines  the  line  of  navigation  of  the  river,  and 
fixes  the  limit  out  to  which  the  riparian  owners  may  erect  wharves,  docks,  and 
other  proper  structures,  and  is  binding  upon  the  court  in  apportioning  the 
water  front  among  the  parties  entitled  thereto.5 

A  riparian  owner  cannot  acquire  title  to  land  in  his  front,  under  the  waters 
of  a  navigable  river  and  below  high-water  mark,  by  filling  up  and  displacing 
the  water  with  soil  from  his  land.6  Land  made  by  filling  in  the  space  between 
high-  and  low-water  mark,  under  the  right  of  the  city  of  New  York  to 
improve  the  tideway  for  the  benefit  of  commerce,  does  not  becorne  the  prop- 
erty of  the  riparian  proprietor,  as  an  accretion,  but  remains,  as  dry  land,  the 
property  of  the  city,  under  its  grants,  as  much  as  when  it  was  still  land  under 
water. 7  * 

In  the  city  of  San  Francisco  the  owner  of  a  lot  upon  the  water  front  of  the 
bay  has  been  held  not  a  riparian  owner  in  the  sense  in  which  that  word  is 
used  in  the  law  of  tide-waters,  because  the  water  front  of  San  Francisco  was 
created  by  a  statute.  The  owner,  therefore,  of  such  a  lot  has  no  right  to  enter 

teller  v.  Southern  Yacht  Club,  34  La.  Co.,  31  Cal.  118. 

Ann.    837.     See  Municipality  v.    Cotton  5Gronerz'.  Foster  (Va.),  27  S.  E.   Rep. 

Press,  18  La.  Rep.  122.  493.      See  Welch  v.   Oregon   Ry.  &  Nav. 

2  Lockwood  v.  N.  Y.  &  H.  Ry.  Co.,  37  Co.  (Oreg.),  56  Pac.  Rep.  417  [1899]. 

Conn.  387.  6Saunders  v.  New  York  Cent.  &  H.  R. 

8  Bailey  v.  Burges,  n  R.  I.  330  [1877].  R.  Co.  (N.  Y.  App.),  38  N.   E.   Rep.  902. 

4  Engs  v.  Peckham,  n  R.  I.  290  [1877] ;  7  Sage    v.    City  of    New   York,    154  N. 

Bradshaw   v.    Duluth   Mill   Co.    (Minn.),  Y.  61.     Many  grants  in  New  York  State 

53  N.  W.   Rep.   1066;  Bailey  v.   Burgess,  are    governed    by    the    Law    of    Nether- 

ii  R.  I.  330;  Dana  v.  Jackson  St.  Wharf  lands. 

*  See  Sec.  401,  infra. 


§  382.  OPERATIONS  PRELIMINARY    TO    CONSTRUCTION.  260 

on  the  increase  of  land  by  accretion  or  alluvion  to  the  exclusion  of  the  state, 
nor  can  he  maintain  ejectment  against  a  stranger.1 

Land  outside  of  the  harbor-lines  is  under  navigable  water  and  belongs  to 
the  state.  Where  one,  without  right,  enters  on  and  fills  up  land  under  navi- 
gable water,  thereby  raising  it  above  the  water,  he  acquires  no  title  to  such 
land,  and  is  not  an  adjacent  owner  within  the  statute. a 

A  riparian  owner  on  a  navigable  lake  may  construct  a  pier  below  high-water 
mark  if  ii:  does  not  obstruct  navigation;3  and  under  an  act  authorizing  the  pro- 
prietors of  lots  abutting  on  a  river  to  wharf  out  and  extend  such  lots,  the  pro- 
prietors became  owners  of  such  extensions  and  iu  ^rovements.4 

A  city  cannot  by  ordinance,  under  authority  of  the  legislature,  fix  an  arbi- 
trary dock-line  in  a  navigable  river,  in  the  bed  of  which  the  riparian  owners 
have  absolute  property  subject  only  to  the  public  right  of  navigation,  without 
notice  to  such  owners.  A  dock-line  cannot  be  fixed  at  a  point  in  a  navigable 
river  occupied  by  rapids,  and  entirely  unfitted  for  navigation  proper,  and 
where  the  center  of  the  stream  only  is  useful  for  floating  logs.  Such  an  act 
would  prevent  the  riparian  owner  from  building  out  into  the  intervening 
waters.5 

382.  What  may  be  Done  to  Prevent  Encroachments  or  to  Promote 
Accretions.* — The  right  to  accretion  depends  in  no*wayupon  the  owner  main- 
taining levees,  enbankments,  or  other  improvements.6  The  fact  that  accre- 
tions are  due  wholly  or  in  part  to  obstructions  placed  in  the  river  by  third 
parties  does  not  prevent  the  riparian  owner  from  acquiring  title  thereto.7 

Any  reasonable  means  may  be  taken  to  prevent  the  wearing  away  of,  and 
encroachment  of  streams  upon,  land.  Trees  may  be  planted,  the  bank  may  be 
covered  with  stones,  a  wall  or  embankment  may  be  built.8  Where  an  embank- 
ment is  constructed  for  the  protection  of  one's  lands  it  is  the  duty  of  the  owner 
to  take  care  not  to  direct  the  currents  so  as  to  occasion  substantial  injury  to  his 
neighbor.  If  one  has  not  been  careful,  and  has  not  avoided  such  injuries  as 
could  have  been  reasonably  anticipated  by  a  man  of  ordinary  prudence  and  in- 
telligence, he  will  be  liable  in  damages  for  any  injuries  occasioned  by  his  act.9 
The  landowner's  efforts  must  be  confined  to  keeping  the  channel  in  its  present 
location,  and  he  may  not  build  a  bulkhead  and  throw  the  current  upon  the 
opposite  shore.10  If,  however,  a  riparian  owner  shall  have  himself  erected  a 

1  Dana  v.  Jackson  St.  Wh.  Co.,  31  Cal.        18  La.  122. 

118  [1866].    '  7Tatum  v.  City  of  St.  Louis  (Mo.  Sup.), 

2  People    v.     Commissioners    of    Land       28  S.  W.  Rep.  1002. 

Office  (N.  Y.  App.),  32  N.  E.  Rep.  139.  8i    Amer.    &     Eng.    Ency.     Law     139; 

3 Mills  &  Allen  v.  Evans  (Iowa),  69  N.  Wetmore    v.    Atlantic    White  Lead  Co., 

W.  Rep.  1043.  37  Barb.  70. 

4  Jacob  Tome  Inst.  of  Port  Deposit  v.  9  Crawford  v.  Rambo  (Sup.  Ct.    Ohio), 
Crothers,  40  Atl.  Rep.  261.  22  Reptr.  529  [1886]. 

5  Grand  Rapids  v.   Powers  (Mich),   50  10i  Amer.  &  Eng.  Ency.  Law  139.     See 
N.  W.  Rep.  661.  also  Diedrich  v.  R.  R.  Co.,  42  Wis.  248. 

6  Municipality   No.  2  v.   Cotton   Press, 

*  See  Sees.  131-137,  supra. 


26 1  BOUNDARIES   ON    WATERS.     SHIFTING    CHARACTER.      §383. 

structure  or  placed  an  impediment  in  a  stream,  he  cannot  resist  the  claims  of 
an  opposite  owner  to  accretions  acquired  in  consequence  of  such  structures.1 
If  filling  has  been  wrongfully  added  to  one's  bank  by  other  parties,  without  his 
consent,  as  to  the  street  opposite  to  proprietor's  land,  it  will  be  regarded  as 
accretion,  and  so  much  as  has  been  added  to  the  owner's  half  of  the  street  be- 
comes his,  and  his  boundary-line  extends  to  the  water's  edge.2 

The  fee  in  the  streets,  alleys,  commons,  and  public  grounds,  lying  on  the 
lake  front  of  Chicago,  is  vested  in  the  city,  together  with  the  riparian  rights 
appertaining  thereto  ;  and  these  rights  were  not  divested  by  the  fact  that  the 
Illinois  Central  Railroad  occupied  the  lands  underlying  the  immediate  front,  and 
filled  them  in  for  its  right  of  way,  under  authority  of  a  city  ordinance  ;  and  the 
city  still  has  the  right  to  exercise  such  riparian  rights,  subject  to  the  terms  of 
the  ordinance  and  to  the  authority  of  the  state  to  prescribe  the  lines  beyond 
which  no  structures  may  be  extended,  and  also  subject  to  such  supervision  and 
control  as  the  United  States  may  lawfully  exercise.3 

The  reclamation  by  the  Illinois  Central  Railroad  Company  from  the  waters 
of  Lake  Michigan  of  a  tract  200  feet  wide,  extending  along  the  front  of  the  city 
of  Chicago,  and  the  construction  of  its  tracks,  crossings,  guards,  etc.,  and 
the  erection  of  the  breakwater  on  the  east  thereof,  and  the  necessary  works 
for  the  protection  of  the  shore  on  the  west,  all  as  required  by  the  ordinance 
under  which  it  was  permitted  to  enter  the  city,  was  held  not  to  interfere  with 
any  useful  freedom  in  the  use  of  the  waters  of  the  lake  for  commerce, — foreign, 
interstate,  or  domestic, — or  constitute  such  an  encroachment  upon  the  domain 
of  the  state  as  to  require  the  interposition  of  a  court  for  their  removal,  or  for 
any  restraint  in  their  use.4 

The  accumulation  of  a  sand-bar  in  a  stream  is  ordinarily  one  of  those 
natural  results  which  neither  party  has  any  right  to  interfere  with  by  direct 
removal ;  but  where  its  accumulation  is  a  common  injury  to  both  parties,  either 
would  be  justified  in  removing  the  sand-bar.5 

In  apportioning  the  lands  under  the  waters  of  the  Elizabeth  River  among 
riparian  proprietors,  no  part  of  the  port  warden's  line  of  navigation  should  be 
excluded,  but  the  whole  should  be  apportioned  among  the  parties.6 

383.  Determination  of  Boundaries  of  Land  Acquired  by  Accretion  or 
Beliction, — When  a  new  shore  is  formed  on  a  non-navigable  river  by  deposits 
and  accretion  and  attendant  erosion  from  the  opposite  side,  as  is  usually  the 
case,  the  new  land  on  the  new  shore  is  to  be  divided  among  the  owners 
entitled  to  it  according  to  a  rule  .of  apportionment  which  gives  to  each  owner 
a  share  of  the  new  shore  line  in  proportion  to  what  he  held  in  the  old  shore 

1  Halsey  v.  McCormick,  18  N.  Y.   150.       Sup.  Ct.'  Rep.  no. 

See  also  Lockwood  v.  N.  Y.  &  N.  H.  R.  4  Illinois  Cent.  R.  Co.  v.  State,  13  Sup. 

Co.,  37  Conn.  387,  and  many  cases  innate  Ct.  Rep.  no,  affirming  33  Fed.  Rep.  730. 

4,  i  Amer.  &  Eng.  Ency.  Law  137.  5  Root  v.  Johnson,  26  Vt.  64  [1853]. 

2  Steers  v.  Brooklyn,  "101  N.  Y.  51.  6Groner  v.  Foster  (Va.),  27  S.  E.  Rep. 

3  Illinois    Cent.    R.    Co.    v.    State,    13  493. 


§  383-  OPERATIONS  PRELIMINARY    TO    CONSTRUCTION.  262 

line,  and  the  division  of  the  land  is  completed  by  running  a  line  from  the 
bound  between  the  parties  on  the  old  shore  to  the  point  thus  ascertained  on 
the  new.1 

This  rule  has  been  adopted  in  Illinois,  where  land  on  the  Mississippi  River 
had  been  divided  into  lots  extending  to  the  river  front  and  had  become  the 
property  of  several  lot- owners.  Accretions  having  formed  along  the  river 
front,  disputes  arose  as  to  the  direction  of  the  lines  bounding  said  accretions : 
as  to  whether  the  lines  ran  perpendicular  to  the  bank  or  perpendicular  to  the 
middle  line,  or  by  some  other  rule.  It  was  decided  that  the  lines  should  be 
run  so  as  to  give  to  each  lot-owner  the  same  proportion  of  the  middle  line  of 
the  river  as  he  owned  of  the  shore-line  before  the  accretion  was  formed  ;  that 
the  entire  river  front  as  it  was  before  the  lots  were  laid  out  should  be  measured 
and  the  feet  frontage  of  each  lot  noted ;  that  measurement  should  be  made  of 
the  middle  line  of  so  much  of  the  river  as  lay  opposite  the  shore-line  so 
measured ;  and  that  then  the  middle  line  so  measured  should  be  divided  into 
as  many  equal  parts  as  there  were  lineal  feet  in  the  shore-line,  giving  to  each 
proprietor  as  many  of  these  parts  as  his  property  measured  feet  on  the  shore- 
line, and  that  then  the  division  should  be  completed  by  drawing  lines  between 
the  points  thus  established  and  the  termini  of  the  shore  bounds.  These  lines 
were  held  to  be  the  boundaries  between  the  coterminous  owners.2 

The  Wisconsin  courts  have  adopted  a  similar  rule  to  determine  the  division- 
line  between  adjoining  holdings,  in  the  shallow  waters  of  a  navigable  bay,  of 
owners  of  land  bordering  thereon,  and  located  on  a  cove.  The  rule  is  ( i )  to 
measure  the  whole  extent  of  the  shore  line,  and  compute  how  many  rods, 
yards,  or  feet  each  riparian  proprietor  owns  thereon ;  ( 2 )  to  divide  the 
navigable-water  line  into  as  many  equal  parts  as  such  shore-line  contains  rods, 
yards,  or  feet,  and  then  appropriate  to  each  proprietor  as  many  of  such  parts 
of  such  navigable -water  line  as  he  owns  rods,  yards,  or  feet  of  the  shore- 
line;  and  (3)  to  draw  a  line  from  the  point  of  division  on  the  shore  line 
to  the  point  thus  determined  as  the  point  of  division  on  the  navigable-water 
line.3 

The  courts  of  Virginia  adopted  a  like  rule  in  a  case  where  the  line  of  navi- 
gability formed  two  sides  of  a  right-angled  triangle,  of  which  the  shore-line 
was  the  hypotenuse  (Fig.  d),  the  line  of  navigability  was  subdivided  and 
apportioned  in  the  same  proportions  that  the  portions  of  the  shore-line  owned 
by  each  bore  to  the  whole  shore-line,  and  each  owner  was  held  entitled  to 

Ji  Amer.  &   Eng.  Ency.  Law  138,  and  Mich.     498;    Northern    Pine-land  Co.  v. 

cases  cited;  Groner  v.   Foster  (Va.),   27  S.  Bigelow,  84  Wis.  157.     But  see  Smith  v. 

E.  Rep,  493;  Watson  v.   Horoe  fN.   H.),  Johnson  (C.  C.),  71  Fed.  Rep.  647. 

13    Atl.     Rep.    789    [1888];    Johnson    v.  2  Kehy    v.    Snyder,    114    111.    313.     See 

Jones,  66  U.  S.  i;  Black,  222;  O'Donnell  Classes  v.  Chesapeake  G.   Co.  (Md.),  31 

v.    Kelsey,   10  N.   Y.  412;  Batchelder  v.  Atl.  Rep.   808,  and  Mulry  v.  Norton,   100 

Keniston,  51  N.  H.  496;  Delaware,  L.  &  N.  Y.  424. 

W.  R.  Co.  v.  Hannon,  37  N,  J.  Law  276;  3  Northern  Pine-land    Co.    v.   Bigelow 

Blodgett  &  D.  Lumber  Co.  v.   Peters,  87  (Wis.),  54  N.  W.  Rep.  496. 


263  BOUNDARIES   ON    WATERS.     SHIFTING   CHARACTER.      §  383. 


such  portion  of  the  flats  as  would  be  bounded  by  lines  drawn  from  the  termini 
of  his  portion  of  the  line  of  navigability  to  the  termini  of  his  portion  of  the 
shore-line,  and  that  the  entire  line  of  navigability,  and  not  merely  one  side  of 

the  triangle,  must  be  so  apportioned, 
irrespective  of  the  fact  that  one  part 
was  less  valuable  than  another. l  The 
apportionment  is  not  the  partition  of 
a  subject  held  in  common,  but  of  a 
subject  in  which  the  interest  of  each 
owner  is  separate  and  needs  only  to 
be  determined  to  prevent  encroach- 
ment upon  the  rights  of  one  an- 
other.1 The  shore -line  in  this  case 

was  the  low-water  mark,  as  the  rights  and  privileges  of  the  owners  extended  to 
low-water  mark. 

In  New  Hampshire,  where  one  of  two  adjoining  owners  whose  lands  are 
bounded  on  a  cove  fills  in  and  makes  new  land  extending  into  the  cove  oppo- 
site the  premises  of  the  other  owner,  the  new  land  made  will  be  divided 
between  the  two  owners  as  if  it  were  natural  alluvion,  as  follows :  by  ascer- 
taining the  length  of  shore-line  each  owned  formerly,  and  dividing  the  new 
shore-line  in  the  same  proportion  that  each  one's  part  bore  to  the  whole  and 
drawing  straight  lines  from  the  former  to  the  latter  boundaries.2 

The  rule  is  probably  the  most  satisfactory  of  any  yet  adopted  by  the  courts, 
but  it  gives  some  interesting  results  when  applied  at  different  periods  of  time 
or    in    different  ways.      Any  rule  is  a 
poor  rule  which  defines  property  rights 
that  are  distinctly  at  variance,  depend- 
ing upon  the  time  they  are  determined 
or  upon  the  method  of  applying  the 
rule. 

What  is  meant  is  best  shown  by 
illustration.  Suppose  that  A,  B,  and  C 
own  adjoining  estates  located  as  shown 
in  the  diagram  (Fig.  e).  Suppose  that 
A  and  C  in  1870,  '80,  '90,  and  1900 
have  their  land  surveyed,  and  by  the 

rule  of  apportionment  their  bounds  are  located  successively  at  m,  n,  and  o, 
which  makes  their  boundary  the  broken  lines  Imno  and  I'm'n'o'-,  and  suppose 
that  B  makes  his  survey  in  1900  for  the  first  time  since  1870;  then  by  the 
rule  his  boundary-lines  would  be  lo  and  I'o',  which  inclose  the  parcel  Imnol 
and  over  which  controversies  are  certain  to  arise,  and,  as  the  diagram  shows, 


T-1900 

[-1890 

Li  880 


1  Groner  v.  Foster  (Va.),  27  S.  E.  Rep. 
493- 


2  Watson    v.    Horoe   (N.    H.),    13    AtL 
Rep.  789  [1888]. 


§383- 


OPERATIONS  PRELIMINARY    TO    CONSTRUCTION1. 


264 


FIG.  /. 


it  might  make  considerable  difference  to  B.     Whether  the  dividing  line  should 
be  straight,  broken,  or  curved  is  the  question. 

Another  feature  of  the  rule  that  may  lead  to  mischief  is  its  application  by 
the  surveyor,  as  the  result  will  often  depend  upon  the  extent  or  length  of  shore- 
line that  is  taken  when  the  shore-line  is  very  irregular.  This  also  may  be  shown 
best  by  diagram  (Fig.  /").  It  is 
apparent  that  if,  in  subdividing 
the  land  to  be  reclaimed  between 
the  old  and  new  shore,  only  A 
.and  B  are  considered,  the  division 
would  be  different  from  what  it 
would  be  if  the  division  were  be- 
tween A,  B,  C,  D,  E,  and  F. 
The  question  is,  between  what 
points  shall  the  surveyor  measure 
either  the  old  shore  or  the  new 
shore  ?  Shall  he  measure  from  a 
to  b,  or  from  a  to  c,  or  from  a  to  some  other  point,  zJ  First,  suppose  he 
measures  from  a  to  b  and  the  shore-lines  measure,  old  15  chains,  new  10  chains; 
and  suppose  A's  old  shore-line  is  9,  and  B's  6  ;  then  A  gets  6  and  B  gets  4 
chains  of  new  shore.  Secondly,  suppose  the  surveyor  measures  from  a  to  c  and 
the  shore-lines  measure,  old  45  chains,  new  20  chains,  and  that  the  respective 
owners'  old  shore-lines  measure,  A's  9,  B's  6  -f-  4,  C's  6,  D's  3,  E's 
8,  F's  9  ;  then  the  respective  shares  of  each  in  the  new  shore-line,  by  the 
rule,  would  be  :  A  4  ;  B  2f  -f-  i-J  ;.  C  2f  ;  D  i-J- ;  E  3^  ;  F  4  chains.  While 
A  and  B  received  10  chains  of  new  shore  in  the  first  instance,  for  the 
•same  shore-line  in  the  second  instance  they  received  only  6f  chains.  The 
case  in  the  diagram  would  be  an  interesting  one  to  which  to  apply  the  rule. 
The  lines  indicated  are  drawn  according  to  the  rule  and  the  statement  of  facts 
in  the  second  case.  It  is  apparent  that  such  a  rule  is  not  applicable  in 
all  cases. 

Had  the  court  instructed  what  point  was  to  be  selected  in  the  shore-line, 
and  between  what  points  to  measure,  the  rule  then  would  be  applicable  to  most 
cases.  It  is  submitted  that  the  rule  is  an  especially  good  one  for  the  equitable 
adjustment  of  boundary-lines.  It  may  be  applied  generally  to  streams  that  are 
crooked  and  irregular,  if  the  sections  taken  extend  from  points  where  the 
opposite  banks  of  the  stream  are  parallel  for  some  distance,  and  where  perpen- 
diculars can  be  drawn  to  both  banks  and  at  the  same  time  be  perpendicular  to 
the  medium  line,  and  to  most  cases  in  bays  and  harbors.  There  should  be  no 
difficulty  in  ascertaining  what  part  of  one  line  is  opposite  to  another  line,  if 
they  are  parallel  lines ;  but  even  then  the  length  of  shore  or  coast  considered 
will  change  the  result.  Many  amusing  and  interesting  problems  come  up,  and 
one  may  find  considerable  entertainment  trying  to  adjust  the  rule  to  extraordi- 


265          BOUNDARIES   ON    WATERS.     SHIFTING    CHARACTER.      §383. 

nary  cases.  In  a  recent  case  the  Supreme  Court  of  the  state  of  New  York  held 
that  the  land  under  the  waters  of  a  navigable  river  should  be  apportioned 
between  adjacent  owners  in  proportion  to  their  frontage  upon  the  main 
channel  of  the  river  in  a  practically  straight  line,  and  as  such  line  would  be 
extended  by  following  the  line  of  indentations  considered  as  a  part  of  the 
river.1 

Other  rules  have  been  adopted  by  courts  which  are  even  more  amusing  to 
read  about,  but  which  if  undertaken  in  the  field  as  a  surveying  operation  would 
cause  the  average  engineer  or  surveyor  to  sacrifice  his  natural  respect  for  the 
courts  that  made  them,  and  might  also  endanger  his  piety. 

In  Massachusetts  the  courts  have  held  that  "  Flats  situated  in  a  tidal  river, 
at  a  point  in  its  course  above  the  line  of  low  tide,  should  be  divided  among  the 
adjoining  properties  by  drawing  lines  from  the  termini  of  the  latter  on  the  banks 
at  the  ordinary  stage  of  water  to  and  at  right  angles  with  the  center  line  of  the 
river.2  A  Louisiana  court  held  that,  where  alluvion  is  formed,  each  proprietor 
of  original  tracts  fronting  on  the  river  took  between  the  lines  of  his  old  front- 
age on  the  watercourse,  measured  directly  forward  towards  the  new  frontage.3 
In  Connecticut  the  division  of  a  strip  of  seashore  has  been  made  by  running  a  line 
from  the  point  of  intersection  between  the  division-line  of  the  upland  and  the 
high-water  mark  perpendicular  to  the  low-water  mark.4  Whether  the  line  shall 
be  run  perpendicular  to  the  new  bank  when  the  case  is  decided,  or  perpendicular 
to  successive  newly  formed  shore-lines  that  have  existed  for  decades  of  years 
previous,  is  not  explained.  If  the  terminal  bound  be  at  a  corner  or  projecting 
promontory  and  land  has  been  accreted,  would  the  rule  apply  or  hold  ?  (See 
Figs,  d,  e,  and/.) 

The  trouble  is  that  judges  upon  the  bench  do  not  consider  the  difficulties 
attending  field  operations.  To  direct  that  a  thing  be  done  is  quite  different 
from  instructing  how  it  may  be  or  shall  be  done.  It  is  an  easy  matter  for 
a  judge  to  sit  upon  the  bench  and  direct  how  a  boundary-line  shall  be  located 
in  the  field  by  drawing  in  his  imagination  a  line  at  right  angles  from  bank 
to  bank ;  but  if  his  Honor  were  required  to  take  a  transit,  placing  it  upon  one 
bank  and  selecting  some  point  upon  the  same  bank  for  an  alignment,  to  deflect 
a  right  angle,  he  would  probably  find  that  the  line  thus  given  was  'not  perpen- 
dicular to  the  other  bank ;  he  would  find,  in  short,  that  in  order  to  draw  a  line 
perpendicular  to  two  lines  in  the  same  plane  they  must  be  parallel.  The 
operation  of  locating  a  line  at  right  angles  to  an  imaginary  line  in  the  middle 
of  a  sinuous  stream  might  tax  even  a  judge's  ingenuity. 

These  operations  might  be  a  comparatively  easy  matter  after  the  stream 
was  carefully  surveyed  and  plotted,  but  the  parties  frequently  do  not  wish  to  go 

People  v.  Woodruff,  51  N.  Y.  Supp.  3  Newell  v.  Leathers  (La.),  23  So.  Rep. 

SIS-  243  [1897]- 

2  Tappan  v.  Boston  Water-power  Co.  4  Morris  v.  Beardsley  (Conn.),  8  All. 

(Mass.),  31  N.  E.  Rep.  Rep.  139  [1887]. 


§  33;. 


OPERATIONS  PRELIMINARY    TO    CONSTRUCTION. 


266 


to  the  expense  of  a  careful  survey  and  the  making  of  a  map.  In  such  cases  the 
surveyor  is  left  to  locate  the  dividing  line  as  best  his  skill  and  patience  will 
permit. 

It  has  therefore  been  held  that  the  rule  that  accretions  can  be  divided  by 
extending  the  lines  of  riparian  owners  at  right  angles  with  the  middle  thread  of 
so  much  of  the  river  as  lies  opposite  the  shore-line  is  subject  to  modification  by 
special  circumstances,  and  an  instruction  which  fails  to  adapt  the  rule  to  the 
conditions  of  the  case  at  bar  is  erroneous.1 

Fortunately  in  most  cases  the  property  in  the  bed  of  a  stream  or  in 
reclaimed  land  is  of  little  value  or  importance,  and  an  accurate  survey  is  not 
required.  Occasionally  a  case  comes  up  where  wharves,  quays,  docks,  or  piers 
are  to  be  built,  or  where  oyster-beds  or  other  shell-fish  interests  are  to  be  deter- 
mined, or  where  mining  is  conducted,  or  where  popular  summer  resorts  make 
shore  or  coast  privileges  valuable  and  expensive  litigation  results. 

387.  Connection  of  Monuments  with  Inaccessible  and  Imaginary  Bounds. 
— If  a  boundary  on  land  end  at  a  stream,  or  a  stake  or  post  or  tree  on  the  bank 
of  a  stream,  a  question  arises  as  to  how  the  thread  of  the  stream,  or,  the  low-water 
mark  of  a  pond  or  body  of  water,  shall  be  connected  with  those  monuments : 
whether  the  boundary-line  on  land  shall  be  produced  until  it  meets  the  center 
of  a  stream,  or  water's  edge  of  a  body  of  water,  or  whether  it  shall  be  run  in 
the  most  direct  line,  or  whether  it  shall  be  made  perpendicular  to  the  new  shore- 
line or  to  the  line  of  the  old 
bank  ;  and  whether  the  line  shall 
be  made  a  straight  line,  a  broken 
line,  or  a  curved  line. 

Courts  often  declare  that  the 
land  under  water  of  a  river  or 
stream  is  measured  by  lines  at 
right  angles  to  the  bank  from  the 
termini,  without  regard  to  the 
course  or  direction  of  the  line 
bounding  the  remainder  of  the 
tract,  and  without  regard  to  the 
depth  of  the  water.  The  middle 
of  such  lines  drawn  from  bank  to 

bank  will  be  the  filum  aquce,  or  the  middle  line  of  the  stream.2  It  does  not 
matter  how  recently  the  bank  may,  have  been  formed.3  In  the  application  of 
this  rule  the  surveyor  must  not  interpret  it  technically.  When  the  courts  say 


FIG.  g. 


1  Elgin  v.  Beckwith  (111.),  10  N.  E.  Rep. 
558  [1887]. 

2  Hopkins  Acad.  v.  Dickinson,  9  Cush. 
544.     See  75  Ind.  41. 

3  Miller  v.  Hepburn,  8  Bush  (Ky.)  326; 
Clark  v.  Campau,   19  Mich.   329;  Knight 


v.  Wilder,  2  Cush.  202;  Bay  City  G.  Lt. 
Co.  v.  Industrial  Works,  28  Mich.  182; 
Stolp  v.  Hoyt,  44  111.  220;  Deerfield  v. 
Arms,  17  Pick.  41;  Bonewitz  v.  Wygant, 
75  Ind.  41. 


267          BOUNDARIES   ON    WATERS.     SHIFTING    CHARACTER.      §388. 

11  perpendicular  to  the  bank  "  it  is  submitted  that  they  have  in  mind  a  stream 
whose  banks  are  parallel,  and  if  they  are  not  parallel,  then  the  lines  must  be 
drawn  perpendicular  to  the  general  trend  of  the  stream.1  (See  Fig.  g.) 

Where  land  has  been  surveyed  by  the  United  States  Government,  and  has 
been  laid  out  into  squares  called  sections,  and  described  by  section  or  quarter- 
section  lines  which  run  due  north  and  south  or  east  and  west,  it  is  usually  held 
to  go  to  the  original  boundary-lines.  Therefore,  in  a  case  where  two  irregu- 
lar pieces  of  land  were  separated  by  a  quarter-section  line  running  north  and 
south,  and  were  bounded  southerly  by  a  river  running  southeast,  it  was  held  that 
the  accretions  formed  by  the  recession  of  the  river  to  the  south  applied  to  the 
respective  tracts  lying  due  north  thereof,  but  that  the  division-line  between  the 
two  tracts  east  and  west  continued  to  be  the  quarter-section  line  extended.2 

The  judicial  settlement  of  the  divisional  line  between  adjoining  riparian  pro- 
prietors, so  far  as  the  line  runs  from  high-  to  low-water  mark,  is  at  least  a  prima 
facie  settlement  of  the  relative  rights  of  the  parties  beyond  low-water  mark.3 

388.  Subdivision  of  Lowlands  Reclaimed. — The  same  rules  are  applied  to 
the  apportionment  of  low  and  submerged  lands  as  are  applied  to  accretions. 
The  rules  are  not  universal.  They  vary  in  different  states,  and  are  sometimes 
varied  to  meet  particular  cases  to  do  justice  to  all  parties.4  The  law  under- 
takes to  apportion  the  newly  acquired  land  in  proportion  to  the  land  which 
the  parties  hold  as  riparian  owners,  and  by  virtue  of  which  the  law  attributes 
to  them  the  ownership  of  the  acquisition. 

Two  things  are  to  be  kept  in  view  in  making  such  an  equitable  distribu- 
tion :  one  is  that  each  owner  shall  have  a  share  in  the  newly  formed  land  in 
proportion  to  the  acreage  of  their  several  estates;  the  other  is  to  secure  to 
each  an  access  to  the  water  and  a  share  in  the  river-line  in  proportion  to  his 
share  on  the  original  line  of  the  water.  Whether  the  division  should  be  in 
proportion  to  the  area,  or  the  length  of  the  water-line,  of  the  owner's  posses- 
sions seems  to  depend  upon  whether  the  newly  formed  land  is  more  valuable 
for  farming  and  cultivation  or  whether  its  value  is  chiefly  due  to  its  being 
bounded  by  a  stream,  and  useful  for  landing-places,  docks,  quays,  and  other 
accommodations.  The  rule  which  shall  most  nearly,  in  general,  accomplish 
these  two  conditions  will  come  nearest  to  doing  justice. 

The  real  value  of  such  accretion  and  additions  is  due  to  their  proximity 
to  the  stream  and  not  to  their  usefulness  for  farming  purposes.  The  author 
has  yet  to  find  any  case  in  which'  accretion  to  a  shore  or  bank  has  been  dis- 
tributed in  proportion  to  the  areas  of  the  adjoining  tracts.  If  a  man  owned 
a  narrow  strip  lying  upon  the  bank  of  a  stream,  and  another  man  a  long 
narrow  strip  perpendicular  to  the  stream  whose  shore-line  was  but  a  fractional 

1  i  Amer.  &  Eng.-  Ency.  Law  189.  prietors  of  Custom-house  Wharf,  27  Atl. 

2  McCaman   v.    Stagg  (Kan.    App.),  43       Rep.  93,  85  Me.  175. 

Pac.  Rep.  86;  Stark  v.  Miller  (Mich.),  71  4  Elgin  v.  Beckwith  (111.),  10  N.  E.  Rep. 

N.  W.  Rep.  876.  558  [1887]. 

3  Proprietors  of  Maine   Wharf  v.    Pro- 


§  389.          OPERATIONS  PRELIMINARY    TO   CONSTRUCTION.  268 

part  of  that  of  the  first  riparian  owner,  but  whose  area  was  double,  a  sub- 
division which  gave  the  second  owner  double  the  length  of  the  new  shore  that 
was  given  to  the  first  would  hardly  be  characterized  as  just;  and  it  is  believed 
that  such  a  principle  has  never  been  applied  in  subdividing  or  apportioning 
lands  formed  upon  waters. 

This  injustice  is  avoided  by  dividing  the  new  shore-line  in  the  same  pro- 
portion that  the  length  of  each  owner's  original  line  on  the  shore  or  water 
mark  bears  to  the  total  length  of  the  old  shore-line.1  This  rule  may  require 
modifications  perhaps  in  particular  circumstances.  For  instance,  in  applying 
the  rule  to  the  ancient  margin  of  a  river,  to  ascertain  the  extent  of  each 
proprietor's  title  on  that  margin,  the  general  line  ought  to  be  taken,  and  not 
the  actual  length  of  the  line  on  that  margin  if  it  happens  to  be  elongated  by 
deep  indentations  or  sharp  projections.  In  such  a  case  it  should  be  reduced, 
by  an  equitable  and  judicious  estimate,  to  the  general  available  line  of  the 
land  upon  the  river.1 

389.  Submerged  Lands  the   Subject  of  Sale,  Patent,  and  Lease. — An 
owner  of  lands  underlying  a  non-navigable  inland  lake,   with  an  inlet  and 
outlet  stream,  may  lease  his  interest  in  such  lake  for  a  term  of  years,  reserving 
to  himself  the  right  of  fishing  therein  during  such  term.2 

The  right  of  the  riparian  proprietor  on  navigable  waters  to  reclaim  and 
occupy  the  submerged  lands  out  to  the  point  of  navigability  may  be  separated 
from  the  shore-land,  and  transferred  to  one  having  no  interest  in  the  parent 
riparian  estate.3 

The  title  to  tide-lands  in  the  territories  is  in  the  United  States,  and  they 
may  make  grants  thereof.4 

A  patent  for  public  lands  reciting  a  purchase  of  all  the  unsurveyed  sea- 
marsh  in  a  certain  township,  containing  a  certain  number  of  acres  and 
extending  back  to  a  certain  bay  according  to  the  official  plat  of  the  survey  of 
said  lands  in  the  state  land  office,  does  not  show  a  sale/»^r  averswnem.5 

In  the  state  of  Washington  a  conveyance  of  the  upland  passes  littoral  rights 
to  the  abutting  tide-  or  shore-lands  patented  to  grantor  by  the  United  States, 
and  in  connection  with  the  possession  of  the  same,  from  the  time  it  was 
deeded  to  them.6 

390.  Effect  of  Sudden  Changes  on  Boundaries. — In  cases  of  changes  by 
accretions   to   the   shore  or  bank,   especial  notice  is  directed  to  the  words 
"  slow,  gradual,  and  by  imperceptible  degrees  " ;  for  the  rule  is  changed  if  these 
additions  and  changes  are  sudden,  perceptible,    or  the  result  of  one  act  of 
nature,  as  a  flood,  a  storm,  a  landslide,  an  earthquake,  or  upheaval.     In  such 

1  Chief   Justice    Shaw    in    Deefield    v.       Co.  (Minn.),  53  N.  W.  Rep.  1066. 
Arms,  17  Pick.  41.  4  Carroll  v.  Price  (D.  C.),  81  Fed.  Rep. 

2  Bass  Lake  Co.  v.  Hollenbeck,  n  Ohio       137. 

Cir.  Ct.  Rep.  508.     See  Jacob  Tome  Inst.  5  State  v.  Buck  (La.),  15  So.  Rep.  531. 

v.  Crothers  (Md.),  40  Atl.  Rep.  261  [1898].  6  In    re    Seattle    Tide    Lands,    53    Pac. 

3Bradshaw    v.    Duluth    Imperial    Mill       Rep.  341. 


269          BOUNDARIES    ON    WATERS.     SHIFTING    CHARACTER. 

cases  the  land  will  belong  to  the  original  owner  whether  it  be  an  individual! 
proprietor  or  the  state. l 

If  the  change  be  sudden,  leaving  large  tracts  of  submerged  lands 
uncovered,  dry,  and  fit  for  the  ordinary  purposes  for  which  land  is  used,  it 
then  belongs  to  the  state,  unless  it  has  been  previously  owned  by  an  individual 
and  he  can  still  make  out  where  and  what  his  land  was.  The  original 
boundaries  that  existed  before  the  flood  or  upheaval  will  remain  the  true 
boundary. 

To  hold  that  a  change  by  artificial  means  would  extend  the  boundaries 
of  a  lot  would  be  as  unreasonable  as  to  decide  that  the  removal  of  landmarks, 
by  which  the  boundaries  of  a  farm  are  defined  would  extend  or  contract  its 
area. 2 

Land  detached  from  one  side  of  a  river  by  a  sudden  change  in  the 
channel,  and  left  connected  with  the  land  on  the  other  side,  in  such  manner 
as  to  be  capable  of  identification,  is  not  an  accretion.3  Where  a  creek  in 
time  of  freshet,  breaks  through  a  narrow  neck  of  land,  and  afterwards  con- 
tinues to  flow  through  the  new  channel,  separating  the  neck  from  the  tract  to- 
which  it  originally  belonged,  such  separation  is  not  caused  by  the  "  wear  of 
the  creek,"  within  the  meaning  of  a  deed  which  conveyed  to  plaintiff  the 
tract  of  which  such  neck  was  a  part,  "  less  the  wear  of  the  creek."4  The 
middle  of  the  old  channel  of  the  stream  still  constitutes  the  boundary  of  the 
tract,  though  there  may  be  no  water  flowing  therein.5 

A  diversion  of  a  non-navigable  fresh-water  stream  by  artificial  means  by  a, 
mill-owner  does  not  change  a  town  boundary  consisting  of  the  center  of  the 
stream  before  the  diversion  occurred.6 

When  a  lake  five  miles  long  and  one  hundred  rods  wide  was  drained  in 
one  year  by  an  artificial  ditch  and  by  the  cutting  into  it  of  a  river,  a  riparian 
owner  did  not  not  acquire  title  to  the  bed  of  the  lake  under  the  law  of  accre- 
tions.7 

When  a  sudden  action  of  water  takes  a  considerable  quantity  of  soil  from 
the. land  of  one  proprietor  and  deposits  it  upon  the  land  of  another,  the  title 
to  such  soil  remains  in  the  original  owner  if  he  claims  it  before  it  is  united 
with  the  soil  of  the  other  owner.8  The  importance  of  such  changes  will  be 
better  appreciated  when  we  read  in  the  daily  papers  of  floating  islands,  of 
between  one  and  two  acres  in  extent  and  from  four  to  five  feet  thk^k,  coming 

li  Amer.   &  Eng.  Ency.   Law   137;  Ty-  38  S.  W.   Rep.  691;  McKay  v.   Huggan, 

ler  on  Boundries  81-94;  Bouvier  v.  Strick-  24  Nova  Scotia  514. 

lett  (Neb.),  59  N.  W.  Rep.   550;  Hahn  v.  5  Bouvier  v.  Stricklett  (Neb.).  59  N.  W. 

Dawson  (Mo.),  36  S.  W.  Rep.  233;  Wai-  Rep.   550  [1894];  State  of   Neb.  v.  State 

lace  v.  Driver  (Ark.),  33  S.  W.  Rep.  641-  of  Iowa,  12  Sup.  Ct.  Rep.  396. 

2  Judge    Denio    in    Halsey   v.    McCor.  6 In   re  Town    Boundaries    (R.    I.),  42 

mick,  13  N.  Y.  296.  Atl.  Rep.  870  [1899]. 

3Coulthard  v.  Davis  (Iowa),  70  N.  W.  7  Noyes  v.  Collins    (Iowa),    61    N.   W. 

Rep.  716.  Rep.  250. 

*Henning  v.   Bennett  (Sup.),  18  N.  Y.  8  I  Amer.  &  Eng.  Ency.  Law  137. 
Supp.  645;  Sweatman  v.  Holbrook  (Ky.), 


§39°-          OPERATIONS  PRELIMINARY   TO    CONSTRUCTION.  2?O 

down  rivers,  colliding  with  boats,  piers,  and  bridges,  and  finally  stranding 
upon  submerged  flatlands.1 

It  is  submitted  that  the  same  rule  would  be  followed  in  case  of  landslides 
or  earthquakes.  The  party  would  doubtless  be  required  to  remove  his  land 
in  a  reasonable  time  or  forfeit  his  ownership.  Would  he  be  liable  for  the 
damages  to  his  neighbor  ?  A  curious  question  of  duties  and  boundaries  must 
be  presented  in  such  a  case  where  the  landslide  is  of  great  extent;  the  deter- 
mination of  which  is,  it  is  believed,  yet  to  be  decided :  whether  the  proprietor 
of  the  upper  or  the  owner  of  the  lower  stratum  would  enjoy  the  benefits  of  the 
surface  soil.  If  the  submerged  tract  was  open  to  mining,  no  doubt  the 
proprietor  would  be  permitted  to  continue  mining  operations.  If  the  pro- 
prietor of  the  part  that  has  descended  were  a  farmer,  and  his  house,  build- 
ings, and  fields  had  been  transported  to  realms  below,  would  he  be  allowed 
to  continue  to  sow  his  fields  and  reap  his  crops  ? 

When  a  tornado  passed  over  a  city,  in  which  business  buildings  were 
situated,  sweeping  away  hundreds  of  large  houses,  and  killing  and  bankrupt- 
ing many  persons;  and  a  large  five-story  brick  building  was  blown  down,  and 
fell  on  the  adjoining  lot  and  house,  causing  great  damage  to  the  house  and 
goods  by  reason  of  the  fact  that  the  debris  of  said  brick  building  remained  on 
said  house  and  goods,  and  it  was  alleged  that  the  owner  of  the  building 
willfully,  wrongfully,  carelessly,  and  without  right  refused  and  neglected  to 
remove  it  for  four  days  after  notice  to  do  so,  it  was  held  that  there  was  no 
cause  of  action,  since  it  did  not  appear  that  defendant  owner  was  able  to 
remove  the  debris  sooner  by  the  use  of  reasonable  diligence  after  receiving  the 
notice.2 

Reported  from   Havana,  111.,  March          2Ingallsz/.  Hart  Hardware  Co.  (Ky.), 
17,  1896.  20  S.  W.  Rep.  387. 


CHAPTER   XXII. 

BOUNDARIES  ON  WATERS.  LAND  BOUNDED  BY,  ALONG, 
UPON,  OR  ON  A  STREAM  OR  THE  BED,  BANK,  BEACH,  OR 
SHORE. 

401.  Monuments  Described  as  on  the  Bank  or  Shore — Intention  Ex- 
pressed,— Natural  monuments,  such  as  trees,  rocks,  etc.,  mentioned  in  a  deed 
as  occupying  the  bank  of  a  stream  are  not  presumed  to  be  the  real  boundary 
corners,  or  to  stand  on  the  precise  water-line,  at  its  high-  or  low-water  mark. 
They  are  used  rather  to  fix  the  termini  of  the  line  described  as  following  the 
sinuosities  of  the  stream,  and  to  give  the  direction  of  lines  running  -to  the 
stream.  The  law  must  determine  whether  the  boundary-line  shall  be  above 
or  below  tide-water,  and  whether  the  one-half  of  the  river  with  its  islands 
shall  be  included.  At  common  law,  if  the  stream  at  the  place  in  question  is 
not  subject  to  the  ebb  and  flow  of  tides,  and  the  grant  is  so  framed  as  to 
touch  the  water  of  the  stream,  and  the  parties  do  not  expressly  except  the 
stream,  one-half  of  the  bed  of  the  stream  is  included  by  construction  of  the 
law.1 

Some  states  make  a  distinction  in  the  construction  of  the  law  for  grants 
on  non-navigable  streams  from  those  on  navigable  non-tidal  streams.  The 
states  of  Alabama,  Arkansas,  California,  Indiana,  Iowa,  Kansas,  Minnesota, 
Missouri,  Nevada,  Oregon,  Pennsylvania,  Tennessee,  Virginia,  and  in  a  few 
instances  Kentucky,  Michigan,  New  York,  and  North  Carolina  have  held 
navigable  streams  and  their  beds  to  be  public  property,  and  that  therefore 
descriptions  touching  the  water  did  not  by  implication  convey  to  the  center 
of  such  bodies  of  water  (streams).  On  the  other  hand,  Connecticut,  Dela- 
ware, Georgia,  Illinois,  Kentucky,  Maine,  Maryland,  Massachusetts,  Michigan, 
Mississippi,  New  Hampshire,  New  Jersey,  New  York,  North  Carolina,  Ohio, 
Rhode  Island,  South  Carolina,  Vermont,  Wisconsin,  England,  and  Ireland 
give  title  to  the  beds  of  navigable  non-tidal  streams  as  well  as  of  non-navi- 

lL\icev.  Carley,  24  Wend.  451  [1840];  28    Mich.    181;  Morris  v.   Hill,    i    Mich. 

Rice   v.   Munroe,  36   Me.  309;  Cold   Sp.  202;    Gavit   v.    Chambers,    3    Ohio   496; 

I.  W.  v.   Tolland.  4  Cush.  492;    Warren  Benner's   Lessee  v.  Platter,  6  Ohio  505; 

v.  Thomaston,  75    Me.  329  [1883];    Day  Walkerer   v.    Bd.    P.    W.,    16  Ohio  540; 

*v.  Pittsburg,  Y.  &  C.  R.  Co.,  22  Reptr.  Kaukauna  W.-p.  Co.  v.  Green  Bay  Co., 

533    [1886];  Gas-It.  Co.  v.  Indus.  Works,  12  Sup.  Ct.  Rep.  173. 

271 


§402.          OPERATIONS  PRELIMINARY    TO    CONSTRUCTION.  2/2 

gable  streams  to  private  persons  who  are  riparian  owners.1  There  are  some 
exceptions,  as  the  Mohawk  and  Hudson  rivers  in  New  York,  which  are 
affected  by  the  doctrine  of  the  civil  law  which  prevailed  in  the  Netherlands, 
from  which  government  they  were  derived.2  The  rule  does  not  maintain  gen- 
erally in  grants  upon  large  lakes  and  ponds;  on  the  contrary,  the  boundary- 
line  is  generally  the  low-water  mark.3 

What  follows  may  therefore  be  taken  as  generally  true  of  streams  that  are 
not  navigable,  and  are  not  tidal  streams,  and  it  may  be  true  for  navigable 
streams  in  the  list  of  states  given  and  which  recognize  private  property  in  the 
bed  of  streams  that  are  in  fact  navigable. 

402.  Practical,    Common-sense   Rule   Applied. — The    law   as    stated   is 
believed  to  be  the  correct  rule  of  construction  either  from  the  standpoint  of 
common  sense  or  from  the  practice  and  customs  of  surveyors.      Much  can 
be  said  in  favor  of  this  rule,  and  little  against  it,  except  the  prestige  estab- 
lished by  earlier  decisions,  and  the  matter  of  opinion  in  each  case  as  to  what 
the  grantor's  real  intentions  were. 

To  begin  with,  "  a  line  run  to  the  stream  "  does  not  restrict  the  grant  to 
the  bank  or  shore  of  the  stream.  The  stream  is  the  monument,  and,  like  a 
tree,  a  stake,  a  stone,  or  any  other  monument,  controls  the  distance,  and  is 
to  be  considered  as  located  equally  on  the  land  granted  and  the  land  of  the 
adjoining  owner.  The  center  of  the  monument  should  be  the  boundary,  and 
the  grant  should  extend  to  that  point.4 

This  is  believed  to  be  in  sympathy  with  the  feelings  and  practices  of  sur- 
veyors generally.  Without  adhering  to  such  a  construction  water-gores 
would  be  multiplied  by  thousands  along  our  inland  streams  small  and  great, 
the  intention  of  parties  would  be  continually  violated,  and  litigation  become 
interminable.5 

403.  Water  Regarded  as  an  Element   and  a  Natural  Appurtenant  to 
Land. — Prima  facie  the  proprietor  of  each  bank  of  a  stream  is  the  proprietor 
of  half  the  land  covered  by  the  stream.     The  bank  is  the  principal  object, 
and  when  the  law  once  fixes  the  proprietorship  of  that,  the  soil  of  the  river 
should  follow  as  an  incident,  or  rather  as  a  part  of  the  subject-matter,  to  the 
middle  of  the  stream.     The  law  does  not  stop  to  criticise  the  precise  words 
by  which  a  man  is  made  owner.     Is  he  the  shore-owner  ?     If  that  be  so,  he 
touches  the  water,  and  the  construction  of  the  law  does  not  require  express 
words  for  the  grant  of  every  part  of  one's  estate.      Houses,  fences,  mines,  the 
elements  of  light,  air,  and  water,  all  pass  by  the  word  land,  "  usquce  ad  coelum, 
et  ad  infernos."     By  the  same  principle  it  passes  the  adjoining  fresh-water 
stream  to  the  median  line  of  its  margins.     The  passing  of  one  element  may 
just  as  well  be  questioned  as  another  not  only  in  the  eye  of  the  law,  but  in 

1 16  Amer.  &  Eng.  Ency.  Law  253-256.  60  N.  H.  201. 

2  Smith  v.  Rochester,  92  N.  Y.  463.  5Cowen,    J.,    in    Luce    v.    Carley,    24 

3  16  Amer.  &  Eng.  Ency.  Law  250-256.  Wend.  451.     And  see  Gray's  Real  Prop- 
justice  Stanley  in  Sleeper  v.  Laconia,  erty  Cases  325. 


2/3         BOUNDARIES   ON    WATERS.     BED,    BANK,    OR   SHORE.     §404. 

common  sense  and  reason.  What  would  be  more  absurd  for  the  law  than  to 
give  a  man  the  shore  or  side  of  a  fresh-water  river,  and  yet,  by  saving  the  bed 
to  a  grantor,  make  the  grantee  of  the  bank  a  trespasser  every  time  he  should 
slake  his  thirst  or  wash  his  hands  in  the  stream  ?  If  all  the  beds  of  our  rivers 
are  treated  as  being  in  the  grantor,  and  it  is  conceded  that  he  may  have  the 
right  to  reserve  gores  and  parts  of  streams,  innumerable  pieces  will  be  left, 
which  may  have  as  many  owners,  or  be  without  any  owner.  Their  practical 
value  would  be  little  or  nothing,  and  access  would  be  difficult  without  tres- 
passing upon  riparian  owners'  lands  and  provoking  endless  litigation.  A 
door  would  be  open  to  incalculable  mischief.  Intruders  would  fall  into  end- 
less broils  among  themselves  and  involve  the 'adjacent  owners  in  controversies. 
Stones,  soil,  gravel,  and  water  rights  would  be  subjects  for  individual  scram- 
ble, necessarily  leading  to  violence  and  outrage. 

The  law  that  a  grant  bounded  by  a  stream  goes  to  its  middle  line  has  long 
been  understood.  When  the  grant  extends  to  the  shore,  but  excepts  so 
important  a  part  as  the  stream,  the  description  should  state  the  exception  in 
terms.1  Otherwise  the  allowance  of  such  an  exception  would  operate  as  a  frauc1 
gross  in  its  character  and  dangerous  to  a  very  large  portion  of  a  community. 
Anxiety  to  connect  water  with  the  main  premises  runs  through  the  whole  his- 
tory of  law.  If  it  cannot  give  the  land  under  the  water  as  parcel  of  the  grant, 
it  will  save  the  water  as  an  appurtenance.  If  a  man  owns  land  on  both  sides 
of  a  stream,  and  also  owns  the  bed  of  the  stream,  he  may  dispose  of  any  part 
and  of  so  much  of  it  as  he  pleases.  That  is  a  right  incident  to  property.  But 
if  he  wishes  to  retain  the  exclusive  property  of  the  stream  in  himself,  the  law 
requires  him  to  make  it  so  plain  as  to  afford  no  reasonable  doubt  of  his 
intention. 

404.  Effect  of  Field  Operations  on  Descriptions  of  Boundaries.— In  sur- 
veying it  is  impracticable  to  determine  or  meander  the  center-line  of  a  stream. 
Field  operations  are  confined  to  the  bank  or  shore,  and  it  is  the  universal 
practice  of  surveyors  to  describe  property  by  the  lines  run.  Courts  do  not 
always  consider  these  things  in  interpreting  grants  and  conveyances,  but  have 
attributed  the  conception  and  exception  of  the  description  to  the  grantor.  It 
may  be  that  this  is  necessary  on  principle  in  law;  but  to  ascertain  the  inten- 
tion of  a  grantor,  it  is  proper  for  a  court  to  put  itself  in  the  grantor's  position 
and  to  consider  every  circumstance  surrounding  the  parties  at  the  time  of  the 
conveyance.  If  then  it  be  the  common  custom  to  incorporate  the  surveyor's 
notes  and  description  in  the  grant,  it  should  be  no  injustice  to  consider  the 
practice  of  surveyors  in  making  his  survey,  and  his  description  made  there- 
from in  interpreting  a  deed  of  conveyance. 

Few  surveyors  have  been  informed  of  the  rules  of  law  with  regard  to 
boundaries.  Their  knowledge  has  been  confined  to  the  mathematical  and 
field  operations  of  surveying,  and  their  duties  have  been  to  interpret  descrip- 

1  People  v.  Bd.  of  Supervisors,  125  111. 9  [1888]. 


§405-  OPERATIONS   PRELIMINARY   TO    CONSTRUCTION.  2/4 

tions  prepared  by  some  older  and  perhaps  less-informed  surveyor,  or  to  simply 
run  out  lines  indicated  by  the  grantor,  who  was  equally  ignorant  of  the  laws 
of  boundaries.  If  a  surveyor  be  directed  to  survey  a  farm  bounded  by  a 
river,  he -will  ordinarily  include  in  that  survey  the  surface  land  only,  and  his 
survey  will  end  at  the  edge  of  the  stream.  To  do  otherwise  would  incur 
considerable  expense,  time,  and  discomfort.  What  then  would  be  more 
natural  than  for  a  surveyor  chaining  or  running  along  a  bank  or  on  the  shore 
than  to  describe  the  land  surveyed  by  words  and  phrases  that  aptly  describe 
the  operations  he  performed  ?  This,  it  is  submitted,  is  an  almost  universal 
practice. 

405.  Construction  of  Deed  is  Largely  a  Question   of  Intention. — The 
boundaries  of  land  upon  waters  are  often  modified  or  even  changed  from  what 
they  would  be  according  to  law  by  the  expressed  intention  of  the  grantor. 
To  determine  this  intention  certain  words  have  acquired  definite  meanings, 
and  will  generally  be  interpreted  in  the  light  of  those  meanings.      Other  cir- 
cumstances may  surround  the  case,  other  parts  of  the  description  may  show  a 
different  intention,  but  in  the  absence  of  such  modifications  in  the  description, 
or  of  conflicting  testimony,*  or  conditions  that  are  repugnant  to  such  a  con- 
clusion, it  is  pretty  certain  that  a  like  interpretation  will  be  given  to  the  same 
words  by  other  courts. 

406.  Land  Bounded  At,  On,  Along,  By,  or  With  a  Stream  or  Body  of 
Water. — In  the  absence  of  ^an  expressed  reservation  limiting  a  riparian  owner 
to  the  margin  of  the  stream,  he  usually  own*  to  the  center  of  the  stream.1     If 
the  calls  in  the  conveyance  are  for  corners  on  the  bank  of  a  stream  and  there 
is  an   intermediate   line   extending  from  one   such  corner  to  the  other,   the 
stream  is  the  boundary  of  all  riparian  rights.2     If  a  tract  of  land  be  bounded 
by  a  stream  and  its  meanders  and  the  Imes  be  described  as  going  to  a  stake 
on  the  bank,  yet  the  owner  of  the  tract  follows  the  stream  and  is  entitled  to 
any  accretions  to  its  banks.3 

A  conveyance  of  platted  lots  which  are  situated  upon  the  bank  of  a  navi- 
gable stream,  no  part  of  the  bed  of  the  stream  being  platted,  includes  all  the 
riparian  rights  of  the  grantor  in  front  of  said  lots  to  the  center  of  the  stream^ 
although  such  stream  is  not  mentioned  in  the  conveyance.  To  exclude  such 
rights  they  should  be  reserved  or  excepted  in  the  deed.4 

Where  the  government  grants  lands  on  the  banks  of  a  fresh -water  stream, 
without  reservation,  in  states  where  the  common  law  prevails,  all  unsurveyed 

1  Ingraham    v.    Wilkinson    (Mass.),    4  2Whitehurst    v.    McDonald,     52    Fed. 

Pick.  268;   Bardwell  v.  Ames  (Mass-.),  22  Rep.  633. 

Pick.    333;   Pratt    v.    Lamson    (Mass.),   2  3  Denny    v.    Cotton    (Tex.),    22    S.    W. 

Allen  284:  Illinois,  etc.,  Canal  v.  Harris,  Rep.  122. 

ii  111.  554;  Rockwell  v.   Baldwin,  53  111.  4  Head    v.   Chesbrough    (Com.    PI.),    4 

19;  Houck  v.  Yates,  82  111.  179;  Luce  v,  Ohio  N.  P.  73. 
Carley,  24  Wend.  (N.  Y.)  451  [1840]. 

*  See  Sees.  611-640,  infra. 


2/5         BOUNDARIES   ON    WATERS.     BED,    BANK,    OR   SHORE.     §  4°6. 

lands  between  the  middle  line  of  the  stream  and  the  bank  pass  by  the  grant, 
and  the  riparian  owner  cannot  be  divested  by  a  subsequent  survey  and  grant 
of  the  islands.1 

Calls  for  two  corners,  one  at  high-water  mark  on  the  bank  of  a  stream  and 
the  other  at  the  stream,  were  held  to  make  the  stream  the  boundary-line  when 
no  contrary  intention  was  shown.2 

A  deed  describing  the  land  conveyed  as  beginning  at  the  sea,  on  A's  line, 
thence  south  on  the  said  A's  line  to  the  highway,  thence  west  on  the  high- 
way ten  rods  to  the  stake,  thence  north  to  the  shore,  parallel  with  said  A's 
line,  thence  east  to  the  first  bounds  mentioned,  and  no  intention  was 
expressed  to  retain  the  adjoining  shore  as  distinct  from  the  upland,  was  held 
to  convey  the  flats,  or  shore,  with  the  upland.3 

A  boundary  running  to  a  monument  standing  on  the  bank,  and  from 
thence  running  by  the  river  or  along  the  river,  will  not  restrict  the  grant  to  the 
bank  of  the  stream,  for  the  monuments  in  such  cases  are  only  referred  to  as 
giving  the  directions  of  the  lines  to  the  river,  and  not  for  the  purpose  of 
restricting  the  boundary  on  the  river.  A  deed  describing  the  lines  as  to  a  tree 
on  the  bank  of  a  river,  thence  up  said  river,  locates  the  line  at  the  thread  of  the 
stream,  and  that  location  is  not  changed  by  other  words  in  the  same  descrip- 
tion giving  the  length  of  lines  and  quantity  of  land  conveyed.4  A  survey 
running  to  a  point  on  a  river  and  thence  down  said  river,  and  bounding  thereon 
to  another  point,  includes  a  sand-bar  on  the  same  side  of  the  river,  between 
the  two  points.5 

A  description  extending  the  boundary-line  of  land  from  a  given  point,  by 
certain  courses  and  distances,  to  the  mouth  of  a  certain  creek,  and  thence 
ascending  said  creek  by  certain  courses  and  distances,  was  held  to  make  the 
thread  of  the  creek  the  boundary-line,  regardless  of  the  last-named  courses 
and  distances,  even  though  the  creek  was  a  tidal  stream,  the  grantor  having 
the  title  to  its  bed.6 

A  conveyance  of  lands  on  a  navigable  stream  by  boundary-line  coincident 
with  the  line  of  navigation  conveys  the  grantor's  title  to  the  central  thread  of 
the  stream.7 

A  grant  of  land  in  New  York  described  by  reference  to  a  monument  stand- 
ing on  the  bank  of  the  river,  and  by  a  course  given  as  running  from  it  down  the 
river  as  it  winds  and  turns  to  another  monument,  conveys  to  the  middle  of 

1  Grand  Rapids  &  I.  R.  Co.  v.   Butler,       W.  Rep.  849;  People  v.  Bd.  Supervisors, 
15    Sup.    Ct.   Rep.  991;    Fuller  v.  Shedd       125  111.  9  [1888]. 

(111.),  4   N.   E.   Rep.   286.     But  see  Stein-  5Asher  Lumber  Co.  v.  Lunsford  (Ky.), 

buchel    v.    Lane    (Kans.),    51    Pac.    Rep.  30  S.  W.  Rep.  968. 

886  [1898].  6  Freeman  v.  Bellegarde  (Cal.),  41  Pac. 

2  Whitehurst  v.  McDonald  (C.  C.  A.),  Rep.    289;  Hanlon  v.    Hobson   (Col.),  51 
52  Fed.  Rep.  633,  and  cases  cited.  Pac.  Rep.  433  [1897]. 

3Snowz/.  Mt.  Desert  I.  R.  E.  Co.,  84  7  Lake  Shore  &  M.  S.  R.  Co.  v.  Platt 

Me.  14.  (Ohio  Sup.),  41  N.  E.  Rep.  243.  But  set 

4  Kent  v.  Taylor  (N.  H.),  13  AtL.Rep.  City  of  Oakland  v.  Oakland  Co.,  50  Pac. 

419  [1888];  Runion  v.  Alley  (Ky.),  39  S.  Rep.  277. 


§407-  OPERATIONS  PRELIMINARY   TO    CONSTRUCTION.  2?6 

the  stream  unless  the  river  be  expressly  excluded  from  the  grant  by  the  terms 
of  the  deed.  If  the  description  carries  the  grant  to  the  water  of  the  stream, 
and  the  stream  is  not  expressly  excepted,  one-half  of  the  bed  of  the  stream 
will  be  included  by  construction  of  the  law.1 

So  a  grant  extends  to  the  center  of  the  river  by  the  description:  "  That 
fraction  lying  on  the  south  side  of  the  A.  River,  and  on  each  side  of  ... 
S.  Avenue,  and  extending  from  the  avenue  to  the  river,  east  and  west."  2 

An  instruction  which  treats  as  a  non-navigable  river  a  boundary  indicated 
in  a  survey  as  "  the  bed  of  a  dry  creek  "  is  not  materially  defective.3  The 
same  rule  in  regard  to  boundaries  on  streams  applies  to  both  natural  and  arti- 
ficial streams.4 

In  New  York  state  riparian  owners  of  lands,  adjoining  fresh-water  navigable 
streams  and  small  lakes  within  the  state  where  the  tide  does  not  ebb  and  flow, 
own  the  stream  except  that  the  public  has  an  easement  in  such  waters  and  for 
the  purpose  of  travel  the  same  as  on  a  public  highway.  This  easement,  as  it 
pertains  to  the  sovereignty  of  the  state,  cannot  be  alienated,  and  it  gives  to  the 
state  the  right  to  use,  regulate,  and  control  the  waters  for  the  purpose  of 
navigation.  It  does  not  give  to  the  state  any  right  to  convert  the  waters  or  to 
authorize  their  conversion  to  any  otherwise  than  those  for  which  the  easement 
was  created,  viz.,  for  the  purposes  of  navigation.5 

A  creek  is  a  monument  which  may  be  referred  to  as  a  boundary  without 
vitiating  the  description  for  uncertainty.  After  such  a  description  the  addi- 
tion of  a  more  particular  description  by  giving  the  courses  and  distances  of  the 
boundary-lines  will  not  be  regarded  as  a  reformation  of  the  deed,  and 
evidence  of  extrinsic  facts  will  be  admitted  to  explain  the  defective  descrip- 
tion.6 

407,  To  the  Bank  or  Shore,  thence  up  the  Stream. — When  land  is 
bounded  upon  a  stream  and  the  line  is  described  as  running  to  a  creek  and  up 
the  same  to  a  certain  point,  or  up  the  same,  or  up  the  creek  with  its  meanders,  it 
implies  that  the  line  is  to  follow  the  creek  according  to  its  windings  and 
turnings.  If,  however,  the  language  of  the  description  be,  beginning  on  the 
bank  of  the  creek,  thence  up  the  creek  with  its  meanders,  it  is  held  that  the 
margin  of  the  creek  is  the  boundary,  and  not  the  middle  of  the  stream.7 

In  several  states,  if  the  land  is  bounded  by  the  bank  of  the  river,  or  is 
described  by  a  line,  as  running  along  the  bank  of  the  river,  or  along  the  margin 
of  the  river,  it  does  not  convey  to  the  middle  of  the  stream.8  If  the  word 

1  Luce  v.  Carley,  24  Wend.  451  [1840].  6  Travellers'  Ins.  Co.  v.  Yount,  98  Ind. 

2  Hanlon    v.    Hobson    (Col.),     51     Pac.       454  [1884]. 

Rep.  433,  42  Law  Rep.  Ann.  502  [1897],  7  Starr  v.  Child,  20  Wend.  149;  Stone  v. 

3  Barnhart  v.  Ehrhart  (Oreg  ),  54  Pac.       Augusta,    46    Me.    127    [1858].     But    see 
Rep.  195  [1898].  Buck  v.  Squires,  22  Vt.  484,  and  Sleeper 

*  Agawam   Canal   Co.    v.    Edwards,  36  v.  Laconia,  60  N.  H.  201. 
Conn.  476.  8  People  v.  Bd.  of  Supervisors,  125  111. 

5  Smith    v.    Rochester,    92    N.    Y.  463  9  [1888]. 
[1883]. 


277         BOUNDARIES   ON    WATERS.     BED,    BANK,    OR   SHORE.     §407. 

shore  is  employed  instead  of  bank,  it  would  be  the  same  (N.  Y.  rule),  and 
convey  to  the  water's  edge  at  low-water  mark.1  A  grant  to  the  seashore, 
thence  by  the  seashore,  does  not  carry  title  beyond  high-water  mark.2  A 
line  running  to  the  bank  of  a  creek  or  stream  will  give  title  to  the  low- water 
mark  of  the  stream  at  the  time,  and  also  to  any  accretions  made  to  the 
stream.3 

A  deed  conveying  land  bordering  on  a  stream,  and  defining  its  boundaries 
as  commencing  at  the  intersection  of  a  certain  ditch  with  the  shore-line  and 
extending  by  courses  and  distances  named  to  the  shore  of  the  same  stream, 
thence  along  said  shore  as  it  winds  and  turns,  to  the  commencement,  made 
the  shore-line  the  boundary,  and  did  not  convey  the  land  lying  between  the 
low-water  mark  and  the  thread  of  the  stream.4 

A  description  which  read,  "  commencing  at  a  stake  and  stones  on  the  west 
bank  of  a  river, "  and  after  running  the  other  sides  of  the  field  by  certain  courses 
and  distances  to  another  stake  and  stones  on  the  same  bank,  continued  "  thence 
upon  the  bank  at  high-water  mark  to  place  of  beginning, "  was  held  to  define  the 
boundary  and  not  to  include  flats  between  high-  and  low-water  marks.5  Land 
"  bounded  on  the  south  by  C-lake,  and  meandering  along  the  water's  edge  east- 
ward to  a  stake  at  the  lake's  low-water  mark,"  conveyed  merely  to  the  water's 
edge,  and  the  grantee  acquired  no  title  to  any  of  the  portion  covered  by 
water. 6 

When  one  of  the  boundaries  is  substantially  coincident  with  the  shore  of 
a  lake  at  low-water  mark,  the  intent  to  convey  to  such  mark  will  be  presumed, 
in  the  absence  of  language  indicating  a  contrary  intent,  though  the  lake  is  not 
named  as  a  boundary.7 

A  boundary  extending  to  and  on  the  pond,  referring  to  a  natural  pond 
artificially  raised  at  certain  seasons  of  the  year  by  a  dam,  was  held  to  extend 
to  low- water  mark  of  the  pond  in  its  natural  state;  and  the  fact  that  the  deeds 
were  made  during  the  season  when  the  pond  was  temporarily  raised  by  a  dam 
cannot  affect  the  extent  of  their  operation. 8 

If  there  are  other  parts  of  the  description  that  show  an  intention  to  convey 
more  than  the  meaning  of  the  words  convey,  such  parts  will  hold,  as  when  a 
deed  described  the  boundary  of  the  land  conveyed  as  beginning  at  a  fixed 
point,  and  running  a  certain  course,  a  distance  of  "about"  865  feet,  to  a  point 
on  the  shore  of  Long  Island  Sound,  thence  running  along  the  shore  and  sound 

1  Starr  v.  Child,  20  Wend.  149.  5Dunlap  v.  Steison,  4  Mason  349;  Car- 

2  Brown   v.   Heard,  85  Me.   294;  Litch-       penter      v.      Board     of      Commissioners 
field  v.  Scituate,  136  Mass.  39,  48  [1883].       (Minn.),  58  N.  W.  Rep.  295. 

See  also  Provins  v.   Lovi  (Okl.),   50  Pac.  6  Brophy    z/.    Richeson   (Ind.    Sup.),  36 

Rep.  81  [1891].  N.   E.   Rep.  424;  Axline  v.   Shaw  (Fla.), 

8  Halsey  v.   McCormick,  13  N.  Y.  296;  17  So.  Rep.  411. 

Cruikshanks  v.  Wilmer  (Ky.),   18  S.  W.  7  Slauson    v.     Goodrich    Transp.    Co. 

Rep.  1018.  (Wis.),  69  N.  W.  Rep.  990. 

*  Freeman  z/.  Bellegarde  (Cal.),  41  Pac.  8  Paine  v.  Woods,  108  Mass.  160.     But 

Rep.    289;  Freeman    v.    Leighton    (Me.),  see  Smith  v.  Youmans  (Wis.),   70  N.   W. 

38  Atl.  Rep.  542  [1897].  Rep.  1115. 


§40/.  OPERATIONS  PRELIMINARY    TO    CONSTRUCTION.  2?& 

to  a  certain  point,  and  thence,  by  a  given  course,  a  distance  of  "about" 
1288  feet,  to  the  place  of  beginning,  containing  a  certain  number  of  acres 
"  more  or  less."  To  make  the  distances  and  acreage  agree  with  the  deed, 
the  courses  would  have  to  be  run  to  low-water  mark  and  along  low-water 
mark,  and  it  was  held  that  the  deed  conveyed  the  land  to  low-water  mark  and 
included  the  shore,  notwithstanding  the  rule  that  by  the  shore  as  a  monument 
means  the  line  of  high  water  when  the  boundary  is  the  sea. l 

Where  a  deed  describes  the  land  conveyed  as  beginning  at  a  certain  point 
and  "  running  thence  east,  to  the  top  of  the  bank  of  the  Genesee  River,  thence 
southeasterly,  along  the  top  of  the  bank,  to  a  point  that  a  line  parallel  with  the 
north  line  will  contain  ten  acres,  .  .  .  containing  ten  acres  and  no  more," 
the  course  "  along  the  top  of  the  bank  "  follows  the  meanders  of  the  bank.2 

In  the  Circuit  Court  of  California,  under  a  Mexican  grant  which  described 
the  land  as  bounded  by  the  shore  of  the  bay,  a  description  by  courses  and  dis- 
tances includes  the  land  to  ordinary  high-tide  line,  though  "shore"  under 
the  Mexican  law  extended  only  to  the  extraordinary  high-tide  line,  and  the 
Mexican  grant  described  the  land  as  bounded  by  the  shore,  as  words  used  in 
a  common-law  court  decree  must  be  given  the  common-law  interpretation. a 
In  another  case  it  was  held  that  the  expression  to  the  west  on  the  sea,  in  a 
Mexican  grant,  bounds  the  land  granted  by  high-water  mark,  and  does  not 
extend  it  to  low-water  mark;4  it  includes  only  the  lands  above  high-water 
mark,  and  not  the  tide-lands.5  The  fact  that  the  civil  or  Roman  law  has 
always  been  the  recognized  law  of  Mexico,  and  that  under  that  law  the  doc- 
trine of  state  ownership  of  the  beach  between  high-  and  low-water  mark  does 
not  obtain,  does  not  make  a  colonization  grant  of  upland  bounded  by  the  sea 
include  the  beach  or  shore. 

In  California  the  title  to  tide- lands  between  high-  and  low-water  mark  is- 
in  the  state,  except  in  cases  where  grants  may  have  been  made  by  the  Mexican 
government,  before  the  territory  was  acquired  by  the  United  States,  expressly 
covering  tide-lands;  in  which  event  the  United  States,  under  the  treaty  of 
Guadalupe  Hidalgo,  would  be  bound  to  protect  all  private  rights  to  such 
lands  as  against  the  state.6  Similarly  in  conveyances  whose  boundaries  are 
described  as  running  to  the  shore,  and  thence  by  the  shore,  or  where  land  is 
bounded  by  the  bank  of  a  stream,  it  is  held  that  the  shore  or  bank  is  the 
boundary,  and  that  the  water  is  excluded.7 

1  Oakes  «.  De  Lancey  (N.  Y.  App.),  30          6Coburn  v.  San  Mateo  Co.  (C.  C.),  75 
N.  E-.  Rep.  974,  affirming  15  N.  Y.  Supp.       Fed.  Rep.  520. 

561,  and  24  N.  Y.  Supp.  539.  7  Starr    v.    Child,    20   Wend.    149,    and 

2  In  re  Rochester  (Sup.),  40  N.  Y.  Supp.  cases    cited;    Gouveneur    v.    National   Ice 
1007.  Co.  (N.  Y.  App.),  31  N.  E.  Rep.  865;   Ax- 

3  Valantine 'v.  Sloss  (Cal.),  37  Pac.  Rep.  line  v.  Shaw  (Fla.)»   17  So.   Rep.   411;   In 
326-329.  re    Rochester    (Sup.),    40    N.     Y.     Supp. 

4Coburn  v.  San  Mateo  Co.  (C.  C.  N.  D.  1007;   People    v.    Board  '(HI.),   17    N.   K, 

Cal.1),  75  Fed.  Rep.  520.  Rep.  147  [1888];  Morrison  v.  First  Nai_. 

5  More  v.  Massini,  37  Cal.  432;  U.  S.  v.  Bk.  (Me.),  33  Atl.  Rep.  782. 
Pacheco,  2  Wall.  587. 


279        BOUNDARIES   ON    WATERS.     BED,    BANK,    OR   SHORE.     §  408. 

In  some  states  it  is  held  that  the  boundary-line  of  a  non-navigable  stream 
is  the  middle,  whatever  language  is  employed  in  the  description.  This  seems 
to  be  the  rule  in  Connecticut,  New  Hampshire,  and  Pennsylvania.  In  New- 
Hampshire  it  was  held  that  a  description  of  a  boundary  as  going  to  the  river, 
thence  northeasterly  on  the  river  shore  to  a  street,  passed  title  to  the  middle 
of  the  river.1  The  phraseology  of  the  description  must  be  clear  and  specific 
in  order  to  reserve  the  property  in  the  stream,  or  to  limit  the  boundary-line 
to  the  bank  or  water-mark.  There  seems  to  be  a  decided  tendency  towards 
this  rule  to  hold  the  boundary  of  a  non-tidal  stream  to  be  the  middle  unless 
the  language  is  so  explicit  as  to  show  beyond  a  doubt  that  it  was  the  grantor's 
express  intention  to  reserve  the  stream  from  the  conveyance.2 

408,  Expressions  that  do  Not  Carry  Boundary  to  Water's  Edge. — Prob- 
ably not  one  in  ten  surveyors  even  considers  or  weighs  the  import  or  technical 
meaning  of  the  words  he  employs  in  his  notes  and  descriptions,  and  especially 
of  such  small  and  seemingly  insignificant  particles.  Probably  the  words  up  a 
stream  or  along  a  shore  or  bank  would  convey  to  their  minds  the  same  meaning* 
ordinarily  as  «*,  by,  or  along  a  stream,  but  the  courts  have  distinguished  them, 
and  are  likely  to  again,'  and  it  is  well  for  engineers  and  surveyors  to  know 
these  distinctions. 

The  words  running  from  thence  up  a  brook  have  been  held  not  to  imply 
necessarily  on  or  by  the  brook.  "Up  a  brook  due  west  until  it  strikes  the  line 
of  the  common  land"  was  therefore  construed  to  mean  in  a  direct  line  due 
west,  and  not  following  the  course  of  the  brook;  the  court  adding  that  if  the 
intention  had  been  to  make  the  brook  the  boundary,  it  would  naturally  have 
been  stated  that  the  line  was  run  on  or  by  the  brook.3  A  call  thence  north 
down  the  stream  to  a  known  point  described  was  held  to  require  the  line  to 
be  run  straight  to  that  point.4 

A  call  "  from  a  fixed  monument  on  the  edge  of  a  creek  up  the  same  by  a 
single  course  to  another  fixed  monument  on  said  creek  "  has  been  construed 
to  follow  a  straight  line  from  monument  to  monument,  and  not  to  follow  the 
windings  of  the  creek.  A  different  construction  might  have  been  adopted  had 
it  been  to  follow  "the  several  courses  thereof"  or  "the  general  course 
being,"  or  had  similar  language  been  employed.5 

The  word  meander  has  been  held  to  mean  to  follow  a  winding  or  flexuous 
course  but  when  land  was  described  as  "  beginning  at  a  stake  in  the  Bay  of 
Shallows,  .  .  .  thence  with  the  meander  of  the  river,  N.  6oCT  W.  20  Chs.  to 
Shark  Point,"  it  was  held  that  the  boundary-line  was  the  line  described.6 

This  interpretation  is  subject  to  modification,  however,  where  the  descrip- 

1  Sleeper  v.  Laconia,  60  N.  H.  201.  3  Bowman  v.  Farmer,  8  N.  H.  402. 

2  And  set  Hughes  v.  Providence  R.  Co.,  4  Rains  v.  Rains  (Ky.),  20  S.  W.   Rep. 
2  R.  I.  508,  512;  andOlney  v.   Fenner,  2       1099. 

R.  I.  211,  214;  People  v.  Bd.  of  Supervi-  5  Wharton  v.  Brick  (N.  J.),  8  All.  Rep. 

sors,    125    111.    9     [1888];   Piper    v.    Con-  529  [1887]. 

nolly,  108  111.  646  [1884],  and  cases  cited;  6  Turner  v.  Parker  (Ore.),  12  Pac.  Rep. 

Sleeper  v.  Laconia,  60  N.  H.  201.  495  [1887]. 


§409- 


OPERATIONS  PRELIMINARY    TO    CONSTRUCTION. 


280 


tion  clearly  indicates  an  intention  to  convey  to  the  water-line.  Thus  where 
the  moiety  of  a  tract  was  described  in  a  deed  as  commencing  at  a  certain 
stake  on  the  south,  and  running  due  north  to  the  stake  on  the  line  of  said 
tract,  thence  west  along  the  said  line  to  the  corner,  south  to  the  southwest 
corner,  thence  east  to  the  place  of  beginning,  and  it  appeared  that  the  said 
southwest  corner  was  at  the  meander-line  of  the  tide-water,  it  was  held  that 
it  must  be  presumed  that  the  beginning  line  of  the  boundary  was  upon  said 
meander-line,  and  that  the  course  from  the  southwest  corner  to  that  point 
was  intended  to  be  along  such  meander-line,  and  not  on  a  direct  line  between 
those  two  points.  It  was  held  that  in  taking  distances  from  one  point  to 
another  on  navigable  water  the  measurement  shall  be  its  meanders,  and  not 
in  a  direct  line.1 

409.  Middle  Line  of  Streams  the  Boundary. — Streams  are  designated  as 
boundaries  the  same  as  any  other  natural  features.  If  a  boundary  be  described 
as  a  stump  or  a  row  of  trees,  or  an  embankment,  or  a  ditch,  or  a  wall,  with- 
out any  words  of  restriction,  the  legal  presumption  is  that  the  middle  of  the 
row  of  trees,  embankment,  or  wall  is  intended.  There  is  no  reason  in  logic 
or  practice  why  the  same  should  not  hold  for  a  stream,  If  a  stream  bounds 
a  piece  of  property,  one  cannot  say  generally  it  is  the  one  side  more  than  the 
other,  and  the  most  reasonable  conclusion  is  that  it  is  the  middle.  This  is 
the  law  generally  on  all  unnavigable  streams;  the  boundary-line  is  the  middle 
line  of  the  stream — iheflum  aquce,  as  it  is  called  in  law. 

This  line  is  independent  of  the  varying  depth  of  the  stream.  It  is  the 
middle  line  of  the  water's  surface  measured  in  a  line  perpendicular  to  the 
general  trend  or  direction  of  the 
stream,  the  line  that  is  half-way  be- 
tween the  two  opposite  water's  edges.2 
This,  it  is  submitted,  is  determined 
independent  of  narrow  inlets,  coves, 
and  bays  that  do  not  form  a  part  of 
the  stream  proper.  It  is  evident  that 
as  the  stream  may  be  deep  near  one 
bank  and  then  shallow  on  the  opposite 
side,  the  stage  or  height  of  the  water 
at  different  seasons  will  materially 
change  this  middle  line  (see  Figs.  ^ 
and/).  This  indefiniteness  of  loca- 
tion is  somewhat  diminished  by  mak- 

*Rayburn  v.  Winant  (Ore.),  18  Pac. 
Rep.  588  [1888].  But  see  other  cases  in 
which  the  boundary  line  between  two 
points  was  presumed  to  be  straight. 
Burlock  v.  Taylor,  16  Pick.  335  [1835]; 
Riggs  v.  Riggs,  135  Mass.  240  [1883]; 
Wharton  v.  Brick  (N.  J.),  8  All.  Rep. 


FIG.  A. 


FIG. 


529  [1887].  In  re  cases  where  measure- 
ments have  been  made  from  the  eaves, 
see  Tyler  on  Boundaries  205,  bottom;  and 
to  centre  of  street  on  boundaries,  see 
Tvler  on  Boundaries  206. 

2  See  Johnston   v.   Jones,  I    Black  209- 
222  [1861];  and  see  23  Vt.  319. 


28 1         BOUNDARIES   ON    WATERS.     BED,    BANK,    OR   SHORE.     §  4-IO. 

ing  it  the  middle  of  the  low-water  marks  on  both  sides;  but  at  best  it  must  be 
indeterminate.  It  may  vary  from  year  to  year  by  accretion  and  erosion,  for 
it  will  always  be  located  by  taking  the  middle  of  a  line  drawn  at  right  angles 
to  its  general  direction  from  bank  to  bank,  no  matter  how  recently  the  bank 
may  have  been  formed. l  * 

Where  the  navigable  water-line  and  the  shore-line  are  elongated  by  deep 
indentations  and  sharp  projections,  the  meander-line,  as  located  by  the 
government  survey,  and  the  actual  navigable  water-line,  should  be  discarded, 
and  the  general  available  shore-line  and  the  general  trend  of  the  navigable 
water-line  adopted.2  Where  ledges  or  spits  or  tongues  of  land  project  out 
beyond  the  meander-line  of  a  bay,  they  are  included  as  part  of  the  fractions 
of  sections  shown  on  the  government  survey,  and  conveyed  by  government 
patent.3 

Whether  the  stream  is  the  boundary  between  the  United  States  and  a 
foreign  country  or  between  separate  states  or  private  landowners,  that 
boundary  follows  any  changes  in  the  stream  which  are  due  to  a  gradual  accre- 
tion or  degradation  of  its  banks.4 

The  expressions  "  middle  of  the  Mississippi  River"  and  "  the  center  of 
the  main  channel  of  that  river,"  as  used  respectively  in  the  enabling  acts 
under  which  the  states  of  Illinois  and  Wisconsin  were  admitted  into  the 
Union,  and  "  middle  of  the  main  channel  of  the  Mississippi  River,"  as  used 
in  the  enabling  acts  of  Missouri  and  Iowa,  all  being  descriptive  of  the 
boundaries  of  those  states,  were  held  synonymous  terms,  and  to  mean  the 
middle  of  the  main  navigable  channel,  or  channel  most  used,  and  not  the 
middle  of  the  great  bed  of  the  stream,  as  defined  by  the  banks  of  the  river.5 

410.  Meander-lines  do  Not  Always  Determine  the  Boundaries. — Many 
cases  hold  that  a  meander-line  of  a  stream  is  run  by  government  surveyors  for 
the  purpose  of  determining  approximately  the  windings  of  the  stream  or  shore, 
and  to  determine  the  quantity  of  land  in  the  survey,  not  for  the  purpose  of 
making  it  a  boundary-line; 6  the  latter  being  defined  in  all  cases  by  the  waters 
themselves.  The  meander-line  merely  determines  the  sinuosities  of  the  stream 
or  body  of  water,  and  is  not  a  boundary.7  In  a  government  survey  it  does 
not  limit  the  boundaries  of  a  Mexican  grant.8 

Where  an  irregular  tract  of  land  abuts  upon  a  stream,  and  a  meander-line 

*i  Amer.  &  Eng.  Ency.  Law  189.  *  Fuller  v.  Dauphin,  124  111.  542  [1888]; 

2  Northern     Pine-land   Co.    v.  Bigelow  Railroad   Co.    v.    Schurmeir,    7   Wallace 
(Wis.),  54  N.  W.  Rep.  496.  272  [1868] ;  Hardin  v.  Jordan,  u  Sup.  Ct. 

3  Ex  parte  Davidson  (C.    C.),    57  Fed.  Rep.   808,  838;  s.   c.,   140  U.   S.  371;  Co- 
Rep.  883.  burn  v.  San  Mateo  Co.  (C.  C.),  75  Fed. 

*  Nebraska  v.  Iowa,   12  Sup.  Ct.   Rep.  Rep.  520. 

396;  Denny  v.   Cotton  (Tex.),    22  S.  W.  7  Schlosser  v.    Crookshank    (Iowa),  65 

Rep.  122.  N.  W.  Rep.  344. 

5  Iowa  -v.  Illinois,  13  Sup.  Ct.  Rep.  239.  8  Coburn  v.  San  Mateo  County  (C.   C- 

See  Oakland  v.  Oakland  W.-f.  Co.  (Cal.),  N.  D.  Cal.),  75  Fed.  Rep.  520. 
50  Pac.  Rep.  277. 

*  See  Sees.  401-420,  supra. 


§  4I°-          OPERATIONS  PRELIMINARY    TO    CONSTRUCTION.  2%2 

is  run  ostensibly  along  this  shore-line  for  the  purpose  of  fixing  the  area  of 
such  tract,  the  real  boundary  of  the  tract  is  the  shore-line,  and  not  the 
meander-line.1  The  boundary-line  is  the  actual  water-line,  unless  the  con- 
tr^ry  clearly  appears  from  the  deed  itself,  *  or  unless  the  notice  and  other  pro- 
ceedings show  that  such  was  the  purpose  of  the  survey.3  In  the  absence  of 
evidence  of  a  reservation  in  the  patent  or  an  assertion  of  title  by  the  govern- 
ment to  land  lying  between  the  meander-line  of  a  lake,  as  established  by  its 
surveyors,  and  the  shore-line  of  the  lake,  evidence  aliunde  is  inadmissible  to 
show  that  the  meander-line  was  intended  as  the  boundary  of  the  adjoining 
patent.4 

The  fact  that  a  stream  was  not  meandered  by  United  States  surveyors 
raises  a  presumption  that  it  was  not  navigable.5 

A  call  "  thence  meandering  down  the  bank  of  the  river  "  makes  the  river 
one  of  the  boundaries  of  the  land.6  When,  in  a  government  survey,  a 
meander-line  was  run  along  the  east  bank  of  a  slough  but  was  not  marked  on 
the  goverrunent  map,  and  the  slough  was  marked  on  the  map  as  the  west 
boundary  of  the  land,  it  was  held  that  the  meander-line  was  not  the  boundary, 
and  that  the  description  included  an  island  lying  between  the  lines  described 
and  the  middle  of  the  slough,  such  island  never  having  been  surveyed  or 
platted  by  the  general  government.7 

Where,  under  a  patent  from  the  United  States,  the  state  acquires  title  to 
a  section  of  land  partly  within  and  partly  without  a  meander-line,  and  the 
dry  land  without  the  meander-line  is  divided  into  lots,  and  there  is  nothing 
to  indicate  that  it  was  intended  to  bound  the  lots  by  such  meander-line,  a 
patent  from  the  state  of  one  of  the  lots,  describing  it  by  its  number  and 
section,  conveys  the  whole  thereof  to  the  opposite  section-line.8 

But  where  lands  are  conveyed  by  reference  to  the  official  plat  of  a  survey, 
which  shows  a  meander-line  along  marshy  lands  extending  to  Lake  Erie,  the 
meander-line  was  held  to  be  the  boundary-line;9  and  where  a  state  patent 
of  swamp-lands  describes  the  land  conveyed  by  subdivisions,  according  to 
the  United  States  survey,  and  continues  the  description  by  giving  the  number 
of  the  swamp-land  survey,  and  saying  that  it  is  more  particularly  described 
in  the  field-notes  of  the  survey,  and  then  recites  the  field-notes,  the  land  con- 

iHeald  v.  Yumisko  (N.   D.),  75  N.  W.  917  [1888];  Home   v.  Smith,  15  Sup.  Ct. 

Rep.  806  [1898].  Rep.    988;   Bland  v.  Smith  (Tex.),  43  S. 

2  Sizor  v.   Logansport,   50  N.    E.    Rep.  W.   Rep.  49   [1897].     See  People  v.  War- 
377.  ner  (Mich.),   74  N.  W.   Rep.  705  [1898]. 

3  Tolleston  Club  v.  Clough  (Ind.  Sup.),  But  see  Barnhart  v.   Ehrhart  (Oreg.),   54 
43  N.  E.  Rep.  647.  Pac.  Rep.  195  [1898]. 

4Schlosser  v.  Crookshank  (Iowa),  65  8  Tolleston  Club  v.  State  (Ind.  Sup.), 

N.  W.  Rep.  344.  38  N.  E.  Rep.  214;  Stoner-z/.  Rice  (Ind.), 

5Clute  v.  Briggs,  22  Wis.  607  [1868].  22  N.  E.  Rep.  968. 

6Heilbron  v.  Kings  River,  etc.,  Co.  9  Niles  v.  Cedar  Pt.  Club,  85  Fed.  Rep. 

(Cal.)i  J7  Pac-  ReP-  933  [1888].  And  see  45.  But  see  Home  v.  Smith,  15  Sup.  Ct. 

Steinbuchel  v.  Lane  (Kans.),  51  Pac.  Rep.  988,  and  Bland  v.  Smith  (Tex.),  43 

Rep.  886  [1898].  S.  W.  Rep.  49. 

7  Fuller  v.  Dauphin  (111.).  16  N.  E.  Rep, 


283         BOUNDARIES   ON    WATERS.     BED,    BANK,    OR   SHORE.     §411. 

veyed  is  limited  to  that  actually  surveyed  in  the  field  and  described  in  the 
field-notes,  even  if  the  survey  did  not  include  all  the  land  in  the  subdivisions.1 

When,  however,  the  meander-line  was  not  run  along  a  bayou  some 
distance  from  the  river,  and  the  land  between  the  bayou  and  the  river,  though 
in  existence  at  the  time  that  the  survey  was  made,  was  not  surveyed,  it  was 
held  that  such  land  did  not  pass  by  a  conveyance  from  the  government  of  the 
surveyed  tract.2  If  the  description  in  the  deed  contains  no  mention  or  intima- 
tion that  the  land  borders  upon  a  stream,  and  it  is  not  shown  in  the  plat  from 
which  the  deed  was  made,  then  the  grantees  may  not  introduce  evidence 
relating  to  the  title  and  ownership  of  said  land  to  show  that  they  are  riparian 
owners. 3 

411.  Should  Area  Given  Include  Bank  and  Bed  of  Stream?— In  giving 
the  area  of  a  field  or  estate  the  question  arises,  shall  the  land  covered  by 
water  and  that  of  the  banks  or  shores  be  included  ?  If  the  bed  and  banks  be 
a  part  of  the  estate  described  and  clearly  within  the  bounds  surveyed,  doubt- 
less the  ordinary  surveyor  would  include  them,  otherwise  not.  Without  the 
use  of  stadia  measurements  or  resorting  to  triangulation  the  determination  of 
the  middle  line  of  a  fair-sized  stream  is  a  task,  and  unless  authorized  to 
determine  it  and  make  a  plat  thereof  a  surveyor  will  not  go  to  such  trouble 
and  expense.  Indeed,  in  ordinary  cases  -the  interests  at  stake  are  hardly 
worth  the  time,  trouble,  and  expense,  and  it  may  be  doubted  if  a  client  would 
wish  to  pay  for  the  labor  involved  in  determining  the  exact  area. 

It  has  been  held  that  under  a  conveyance  of  land  one  side  of  which  was 
bounded  by  a  public  navigable  river,  the  quantity  determined  as  conveyed 
should  include  all  that  land  between  the  top  of  the  bank  and  the  ordinary 
stage  of  the  water. 4 

In  an  action,  by  the  grantee  in  a  deed  running  "  to  a  point"  in  Long 
Island  Sound,  to  recover  for  a  deficiency  in  the  acreage  of  the  land  conveyed, 
on  the  ground  that  the  deed  could  only  convey  to  the  high-water  line  of  the 
shore,  it  will  not  be  presumed,  in  the  face  of  the  description  in  the  deed 
definitely  calling  for  the  low-water  line  as  the  boundary,  that  the  grantor  had 
no  title  to  the  shore,  since  the  common-law  rule  that  the  title  to  the  shore  is 
in  the  state  does  not  exclude  the  possibility  of  title  in  the  grantor  derived 
from  the  state  or  by  prescription.5 

A  deed  of  land  described  as  "  all  that  tract,  being  part  of  lot  4  on  which 
the  said  B.  now  lives,  beginning  at  a  point  on  a  river,  thence  up  the  river, ' ' 

1Mahon    z/.    Richardson,     50   Cal.   333  2Glen  v.   Jeffrey  (la.),  39  N.  W.  Rep. 

[1875];  The  specific  description  will  hold.  160  [1888]. 

Prentice  v.   Duluth,  S.  &   F.   Co.  (C.   C.  3  Trustees    v.    Schroll    (111.),    12  N.    E, 

A.),   58   Fed.   Rep.   437;  Pond  v.   Minne-  Rep.  243  [1887]. 

sota    I.    Co.   (C.   C.),   58   Fed.    Rep.   448;  4  Hess  v.  Cheney  (Ala.),  3  So.  Rep.  791 

Barnhart    v.    Ehrhart    (Oreg.),    54    Pac.  [1888];  semble,    State   v.    Eason    (N.   C.), 

Rep.  195;  Niles  v.  Cedar  Pt.  Club  (U.  S.  19  S.  E.  Rep.  88. 

C.    C.),    85    Fed.    Rep.    45;     Harrison    v.  5  Oakes  v.  De  Lancey  (N.  Y.  App.),  30 

Stipes  (Neb.),  51  N.  W.  Rep.  976  [1892].  N.  E.  Rep.  974. 


§412.          OPERATIONS  PRELIMINARY    TO    CONSTRUCTION.  284 

etc. ,  by  various  courses,  ' '  thence  north  a  certain  distance  to  Fish  Lake,  to 
the  north  line  of  the  said  lake,  thence  along  the  same,  etc.,  to  the  place  of 
beginning,"  containing  100  acres  and  being  the  number  of  acres  intended 
to  be  conveyed,  carries  the  title  to  the  part  of  the  lot  under  the  lake,  though 
this  amounted  to  40  acres  and  the  land  exclusive  of  this  amounts  to  103 
acres. x 

Whether  or  not  the  area  between  the  center  of  a  street  and  the  exterior 
line  is  to  be  included  as  comprising  a  part  of  the  area  mentioned  in  the  deed 
must  be  one  of  intention  of  the  parties.  It  has  been  held  that  where  land  was 
described  as  "commencing  on  the  southeast  corner  of  lot  9  and  running 
thence  northeasterly  along  the  Indiana  boundary-line,  which  boundary-line 
was  a  highway,  .  .  .  intending  hereby  to  convey  one  acre  of  land  without 
reference  to  metes  and  bounds  as  above  described,"  the  southwest  side  of 
the  tract  conveyed  was  the  center-line  of  the  highway,  even  though  that  only 
gave  to  the  grantee  one  acre  including  the  strip  subject  to  the  easement  of 
the  highway.  * 

412,  The  Question  of  Boundaries  is  Determined  by  the  Laws  of  the 
State. — Whether  the  title  of  a  proprietor  of  land  on  the  margin  of  a  navigable 
river  extends  to  high-water  mark,    low-water  mark,    or   the   middle  of   the 
stream  is  not  a  Federal  question,  though  he  claim  under  a  grant  from  the 
United  States,  but  is  to  be  determined  by  the  laws  of  the  state  in  which  the 
land  is  situated.3 

Where  the  law  of  the  state,  as  an  incident  to  the  ownership  of  riparian 
lands,  attaches  thereto  the  legal  title  to  submerged  lands,  to  the  thread  of  the 
stream,  as  in  Michigan,  such  title  will  accrue  to  one  who  receives  from  the 
United  States  a  patent  to  the  riparian  lands.4 

413,  Law  of  Boundaries  Affected  by  Early  Settlements. — The  laws  of 
New  York  in  regard  to  boundaries  on  waters  are  affected  by  the  doctrine  of 
the  civil  law,  which  prevailed  in  the  Netherlands,  from  whose  government 
grants  for  the  early-settled    parts  of  the  state    were  derived.     This  is  true 
especially   of  the   Hudson    and   Mohawk   rivers,    upon   which   the    rights   of 
riparian  owners  are  distinguishable  from  those  of  owners  upon  other  navigable 
waters  of  the  state.5     Louisiana  has  also  laws  which  are  modifications  of  the 
civil  law  existing  under  French  rule;  from  which  government  tenures  are  held, 
and  the  laws  of  Pennsylvania  are  peculiar  in  their  application  to  land,  and 
the  rights  inherent  thereto. 

The  general  rule  prevents  any  disturbance  of  riparian  rights  by  public 
authority,  past  or  present,  without  making  compensation.  Yet  in  New  York 
state  it  is  the  rule  that  when  the  interests  of  the  whole  people  require  an 

1Wilcoxz/,  Bread,  92  Hun  9.  4 Scranton  v.    Wheeler  (C.    C.   A.),  57 

2  Henderson  v.  Hatterman  (111.  Supp.),        Fed.  Rep.  803. 

34  N.  E.  Rep.  1041.  5  Smith    v.    Rochester,    92    N.     Y.    463 

3  Webb  v.  City  of  Demopolis  (Ala.),  13       [1883];  People  v.  Canal  Apprs..  33  N.  Y. 
So.  Rep.  289.  461,  distinguished. 


285         BOUNDARIES   ON    WATERS.     BED,   BANK,    OR   SHORE.     §413. 

improvement  of  the  water-front  of  a  navigable  stream  for  the  benefit  of  com- 
merce, the  state  may  make  such  improvements  upon  the  tide-water  front 
without  compensating  the  riparian  proprietor,  except  by  giving  him  a  pre- 
emptive right  to  purchase  in  case  of  a  sale. l 

Although,  as  against  individuals,  riparian  owners  have  special  rights  to  the 
tideway  between  high-  and  low-water  mark  which  are  recognized  and  pro- 
tected by  law  as  against  the  general  public,  they  have  no  rights  that  do  not 
yield  to  commercial  necessities,  except  the  right  of  pre-emption  when  con- 
ferred by  statute,  and  the  right  to  wharfage  when  protected  by  a  grant  and 
covenant  on  the  part  of  the  state;  and  any  grant  of  land  on  tide-water^  is 
subject  to  an  implied  reservation  of  the  right  to  improve  the  water-front  to 
aid  navigation,  for  the  benefit  of  the  general  public,  without  compensation  to 
the  riparian  owner. l 

A  grant  to  freeholders,  by  the  governor  of  the  colony  of  New  York,  of 
land  bounded  on  one  side  by  a  river  was  held  not  to  carry  accretions  to  the 
land,  where  the  tideway  of  the  river  was  granted  by  royal  charter  to  the  city  of 
New  York.  Where  the  tideway  of  a  river  was  granted  to  New  York  City  by 
royal  charter,  and  the  state  afterwards  increased  the  grant  to  an  exterior 
street,  under  water,  to  be  laid  out  by  the  city,  an  owner  of  upland  property 
bounded  by  the  river  has  no  riparian  rights  for  which  compensation  must  be 
made  when  the  city  fills  in  the  tideway  in  front  of  the  property  for  the  pur- 
pose of  creating  the  street.2 

The  Hudson  River  Railroad  Company,  under  its  charter  authorizing  the 
construction  of  its  road  along  the  east  shore  of  the  Hudson  River,  cannot  be 
regarded  as  an  adjacent  owner  within  Rev.  St.  (7th  ed.),  p.  573,  §  67,  for- 
bidding grants  of  lands  under  water  "  to  any  person  other  than  the  proprietor 
of  the  adjacent  land,"  and  therefore  cannot  maintain  ejectment  against  a 
person  claiming  under  a  subsequent  state  grant  of  such  lands,  the  use  of 
which  does  not  interfere  with  the  operation  of  the  company's  railway.3 

The  construction  by  the  owner  of  land  bounded  by  navigable  tide-water  of 
a  marine  railway  for  the  purpose  of  hauling  up  boats  is  not  an  adverse  posses- 
sion of  the  land  below  high-water  mark,  within  Code  Civil  Proc.,  §  368,  of 
New  York.4 

The  words  ' '  together  with  all  water  privileges,  rights,  and  immunities  of 
the  said  party  of  the  first  part  therewith  connected,"  taken  in  connection  with 
the  fact  that  there  were  no  water  privileges,  etc.,  connected  with  the  tract 
save  those  resulting  from  the  river  being  the  boundary  on  one  side,  render  it 
absolutely  certain  that  it  was  not  intended  that  the  purchaser's  right  should 
terminate  at  the  water's  edge.3 

JSage  v.  City  of  New  York,  154  N.  Y.  423;  New  York  Cent.  &  H.  R.   R.  Co.  v- 

61,  41  N.  Y.  Supp.  939  [1896-7.]  Aldridge  (Sup.),  16  N.  Y.  Supp.  674. 

2  Sage  v.  City  of  New  York  (Sup.),  41  *  De  Lancy  v.   Piepgras  (N.   Y.  App.), 
N.  Y.  Supp.  938;  Towle   v.    Remsen,  70  33  N.  E.  Rep.  822. 

N.  Y.  303  [1877].  5  Piper  v.  Connolly,  108  111.  646  [1884], 

3  Rumsey  v.    Railroad  Co.,    114  N.  Y. 


OPERATIONS  PRELIMINARY   TO    CONSTRUCTION.  286 

414.  Boundaries  on  Navigable  Waters.* — The  law  of  boundaries  upon 
non-tidal  navigable  waters  and  streams  varies  in  different  states,  the  courts  of 
some  of  which  hold  that  the  riparian  owners  own  only  to  the  water-mark  (high 
or  low),  and  others  hold  that  they  own  the  bank  and  bed  to  the  middle  line 
of  the  stream,  subject,  however,  to  an  easement  of  the  public  to  certain 
reasonable  uses  of  the  waters  of  the  stream.  Those  states  in  which  the  courts 
hold  that  riparian  owners  are  entitled  to  the  ownership  of  the  banks  and  bed 
of  a  navigable  stream  to  the  middle  thereof  are  the  following:  Connecticut, 
Delaware,  Georgia,  Illinois,  Kentucky,  Maine,  Maryland,  Massachusetts, 
Michigan,  Mississippi,  New  Hampshire,  New  York,  North  Carolina,  Ohio, 
Rhode  Island,  South  Carolina,  Vermont,  Wisconsin,  and  the  foreign  countries 
England  and  Ireland.1 

In  Alabama  the  title  of  an  owner  of  land  bordering  on  a  navigable  stream 
extends  to  low-water  mark,  ending  only  where  the  right  to  the  use  of  the 
water  as  a  navigable  stream  begins.2  In  Arkansas  title  extends  to  high-water 
mark,  and  not  to  the  middle  of  the  stream.3  In  Florida  the  land  below 
high-water  mark  does  not  necessarily  pass  to  a  grantee  of  the  upland  as 
appurtenant  to  the  latter.4  In  Missouri  title  carries  only  to  the  water's  edge.5 
In  Montana  title  extends  to  ordinary  low-water  mark.  A  riparian  owner 
may,  in  ejectment,  recover  land  lying  between  high-  and  low-water  marks 
from  one  in  possession  not  claiming  rights  as  a  navigator  or  fisherman.6 

In  New  York  state  a  riparian  owner  has  the  right  to  construct  wharves  on 
his  water-front  for  his  own  use  and  benefit,  subject  to  public  regulation,  and 
such  right  cannot  be  taken  for  public  use  except  by  condemnation  proceed- 
ings as  prescribed  by  law.7 

The  state  of  Washington,  (Const,  art.  17,  §  2),  disclaims  all  title  to  tide- 
lands  patented  by  the  United  States.  It  cannot,  therefore,  assert  title  to  land 
situated  below  the  line  of  ordinary  high  tide,  but  within  the  meander-line, 
which  was  patented  to  plaintiff  by  the  United  States;  said  land  being  within 
the  calls  of  the  patent,  and  described  in  the  official  plat,  and  the  survey  and 
field-notes  accompanying  the  same,  by  courses  and  distances.8 

Where  the  United  States  has  made  grants,  without  reservation  or  restric- 
tion, of  public  lands  bounded  on  streams  or  other  waters,  the  question 
whether  the  lands  forming  the  beds  of  the  waters  belong  to  the  state  or  to 
the  owners  of  the  riparian  lands  is  to  be  determined  entirely  by  the  law  of 

1  16  Amer.  &  Eng.  Ency.  Law  253-257;       411. 

Day  v.    Pittsburgh,  etc.,  R.  Co.  (Ohio),  5  Perkins  v.   Adams  (Mo.  Sup.),  33  S. 

22  The  Reptr.  533  [1886].  W.  Rep.  778. 

2  Webb  v.  City  of  Demopolis  (Ala.),  13  6  Gibson  v.  Kelly  (Mont.),  39  Pac.  Rep. 
So.  Rep.  289.  517. 

'Railway  Co.  v.  Ramsey,  53  Ark.  314;  7  Buffalo  v.  Delaware,  L.  &  W.  R.  Co. 

Wallace    v.    Driver     (Ark.),     33     S.    W.  (Sup.),  39  N.  Y.  Supp.  4. 

Rep.  641.  8  Cogswell  v.  Forrest  (Wash.),  43  Pac. 

*Axline    v.    Shaw    (Fla.),   17  So.   Rep.  Rep.  1098. 

*  See  Sees.,  231-250  supra. 


28/         BOUNDARIES   ON    WATERS.     BED,    BANK,    OR   SHORE.     §414. 

the  state  in  which  the  lands  lie.  When  it  has  disposed  of  the  lands  bordering 
on  a  meandered  lake  by  patent,  without  reservation  or  restriction,  it  has 
nothing  left  to  convey,  and  any  patent  thereafter  issued  for  land  forming  the 
bed  or  former  bed  of  the  lake  is  void  and  inoperative.1 

A  patent  of  the  United  States  conveying  land  lying  upon  the  borders  of  a 
navigable  river  within  the  boundaries  of  a  state  conveys  no  title  to  land  lying 
under  the  stream,  since  the  United  States  has  no  title  thereto.2 

lamprey   v.    Metcalf   (Minn.),   53  N.  2Scranton   v.    Wheeler    (C.  C.  A.),   57 

W.  Rep.  1139.  Fed.  Rep.  803. 


CHAPTER  XXIII. 

BOUNDARIES   ON   LAKES   AND   PONDS. 

421.  Boundaries  on  Natural  Lakes  and  Ponds. — The  subject  of  the 
boundaries  of  natural  lakes  and  ponds  is  a  difficult  one,  and  is  in  confusion 
at  the  present  time.  The  various  state  courts  are  not  yet  agreed  upon  a 
doctrine  on  which  to  base  their  decisions,  and  the  adoption  of  different 
grounds  for  deciding  the  cases  which  have  so  far  come  before  the  courts  makes 
it  difficult  to  lay  down  any  general  rule  which  will  apply  in  all  states  and  in 
all  cases. 

"  The  common  law  of  England,  which  presumes  the  boundary-line  of  two 
estates  separated  by  a  tideless  navigable  river  to  coincide  with  the  middle  line 
of  the  stream,  does  not  apply  to  the  great  fresh-water  lakes  of  this  country. 
Our  large  fresh -water  lakes  or  inland  seas  are  wholly  unprovided  for  by  the 
laws  of  England.  In  these  there  is  neither  flow  of  tide  nor  thread  of  the 
stream;  and  local  laws  have  assigned  the  shores,  down  to  the  ordinary  low- 
water  mark,  to  the  riparian  owners,  and  the  beds  of  the  lakes,  with  the  islands 
therein,  to  the  public."  *  Upon  this  the  courts  are  fully  agreed;  and  the  rule 
can  be  laid  down  that  where  land  is  bounded  upon  an  inland  fresh-water  lake 
so  large  as  to  be  called  a  "  great  lake  "  or  "  inland  sea  "  the  proprietors  of 
such  lands  hold  to  ordinary  low-water  mark,  and  grants  bounded  by  such 
waters  extend  to  that  line  and  no  further.2 

It  has  been  held  that  unless  otherwise  expressed  in  the  grants,  the  land 
lying  upon  Lake  Champlain,  which  covers  nearly  1000  square  miles  and  is 
navigable  for  150  miles,  extends  to  the  low-water  mark,  subject  to  the  servi- 
tude of  the  public  for  the  purpose  of  navigation  up  to  high-water  mark.3 

Failure  of  a  deed,  by  one  owning  to  low-water  mark  on  a  lake,  to  mention 
the  lake  as  a  boundary  will  not  overcome  the  presumption  of  the  intent  to 
convey  to  low-water  mark,  where  the  boundary  given  in  the  deed  is  sub- 

1  Canal    Commissioners    v.    People,    5  24  111.   521;  Bigelow  v.  Nickerson  (C.  C. 

Wend.    (N.    Y.)    423,    447;    Hathorn    v.  A.),  70  Fed.  Rep.  113. 

Stinson,  I  Fairf.  238.  s  Commissioners      v.     Kempshall,     26 

2Gould    on   Waters,    §    203;    Smith    v.  Wend.  (N.  Y.)  404;  Champlain,  etc.,  Ry. 

Rochester,  92  N.   Y.  463;  Sloane  v.  Bie-  Co.  v.  Valentine,   19  Barb.  (N.   Y.)  491; 

miller,   34    Ohio    State    492;    Lincoln    v.  111.   Cent.   R.   Co.   v.   State,   13   Sup.    Ct. 

Davis,  53   Mich.  375;  Seaman  v.   Smith,  Rep.  no. 

288 


289  BOUNDARIES   ON'  LAKES  AND   PONDS.  §421. 

stantially  coincident  with  the  low-water  mark,  unless  a  contrary  intention  is 
manifest  from  the  language  of  the  deed. l 

In  New  Hampshire  it  is  held  that  where  a  grant  runs  to  and  is  bounded 
of  a  lake  or  large  body  of  standing  fresh  water,  the  grant  extends  only  to 
the  water's  edge.2  Long  Pond  at  Concord,  whose  bed  contains  160  acres, 
being  navigable,  under  American  common  law,  was  held  the  property  of  the 
state  and  available  for  public  use.3  In  Massachusetts  a  grant  bounded  by  a 
great  pond  or  lake  which  is  public  property  extends  to  low-water  mark.4  A 
similar  doctrine  prevails  in  Vermont,  and  the  rule  applies  to  a  grant  bounded 
by  creeks  which  are  substantially  arms  and  inlets  of  the  lake; 5  and  in  Maine — 
but  whether  or  not  a  lot  of  land  bounded  on  a  lake  is  limited  to  the 
margin  of  the  lake  depends  on  the  manner  in  which  the  lake  was  formed.6 
The  Supreme  Court  of  Illinois  has  held  that  riparian  owners  on  Lake  Michigan 
own  to  the  line  where  the  water  usually  stands  when  unaffected  by  any  dis- 
turbing cause.7 

In  Wisconsin  a  small  stream  that  spread  into  a  body  of  water  35  to  65 
rods  wide  and  3  miles  long,  and  then  reappeared  as  a  stream,  its  surface  being 
covered  with  water  in  the  spring  and  fall,  and  marshy  and  partially  dry  in 
summer,  and  which  was  filled  with  rushes  and  wild  rice,  and  was  navigable 
only  by  small  skiffs,  but  without  any  defined  channel  or  current  during  the 
greater  part  of  the  year,  and  which  had  been  meandered  by  the  government 
surveyors,  was  held  not  a  watercourse,  but  a  meandered  lake,  and  hence  the 
riparian  proprietors  owned  only  to  the  water-line.8 

The  common  law  as  to  the  dominion,  sovereignty,  and  ownership  of  lands 
under  tide-waters  on  the  borders  of  the  sea  applies  equally  to  the  lands 
beneath  the  navigable  waters  of  the  Great  Lakes,  and  in  this  country  such 
sovereignty  and  ownership  belongs  to  the  states  respectively  within  whose 
borders  such  lands  are  situated,  subject  always  to  the  right  of  Congress  to- 
control  the  navigation  so  far  as  may  be  necessary  for  the  regulation  of  foreign 
and  interstate  commerce.9 

The  confusion  arises  when  questions  come  before  the  courts  dealing  with 
boundaries  on  lakes  which  cannot  fairly  be  called  "great  lakes/'  In  such- 
cases  the  courts  adopt  different  grounds  for  deciding  the  cases  before  them. 
Thus  the  courts  of  some  states  decide  these  questions  by  applying  to  lakes; 
and  ponds  the  same  rule  that  they  apply  to  streams,  and  base  their  decisions, 
upon  the  navigability  or  non-navigability  of  the  body  of  water.  In  some 

1  Slauson    v.    Goodrich    Transp.     Co.  Wood  v.  Kelley,  30  Me.  47. 
(Wis.),  69  N.  W.   Rep.  990.  7  Seaman  v.  Smith,  24  111.  521. 

2  State  v.  Gilmanton,  9  N.  H.  461,  463.  8  Ne-Pee-Nauk  Club  v.  Wilson  (Wis.), 

3  Concord    Mfg.    Co.   v.   Robertson  (N.  71   N.   W.    Rep.    661;    12   Amer.   &    Eng. 
H.),  25  Atl.  Rep.  718;  State  v.  Company,  Ency.  Law  650,  651. 

49  N.  H.  240,  250.  9  111.  Central  R.  Co   v.  State,  13  Sup.  Ct. 

4  Paine  v.  Woods,  108  Mass.  160.  Rep.   no;  People  v.  Kirk  (111.).  45  N.  E. 

5  Fletcher  v.   Phelps,  28  Vt.  257;  Jane-  Rep.  830;  People  v.   Silberwood  (Mich.), 
way  v.  Barrett,  38  Vt.  316.  67  N.  W.  Rep.    1087. 

6Dillingham    v.     Smith,    30    Me.    370; 


§421.  OPERATIONS  PRELIMINARY    TO    CONSTRUCTION.  2 90 

states  the  decisions  have  been  based  upon  ancient  ordinances  and  statutes  in 
force  in  those  states,  and  still  other  courts  have  decided  the  cases  before  them 
by  citing  such  decisions,  although  in  their  own  states  there  were  no  such 
ordinances,  as  formed  the  bases  of  the  decisions  cited. 

Where  states  in  deciding  cases  brought  before  them  have  not  considered 
the  question  from  the  point  of  view  of  the  navigability  or  non-navigability  of 
the  body  of  water,  the  weight  of  -the  decisions  in  this  country  seems  clearly  to 
be  that  where  the  monument  called  for  in  the  grant  is  a  natural  lake  or  pond 
the  boundary-line  is  the  ordinary  low-water  line  of  such  lake  or  pond.1 

In  Michigan  the  settled  law  is  declared  to  be  that  the  boundaries  of 
riparian  owners  extend  to  the  middle  line  of  inland  waters; 2  and  in  New 
Jersey  in  a  case  of  a  lake  three  miles  by  one  mile.3 

The  strong  tendency  of  modern  cases  seems  to  be  to  base  the  decision  on 
the  navigability  or  non-navigability  of  the  lake  or  pond,  and  to  establish  the 
rule  that  if  the  body  of  water  is  navigable,  land  bounded  on  such  a  lake  or 
pond  will  extend  only  to  ordinary  low-water  mark,  but  if  it  be  not  navigable, 
then  it  will  extend  to  the  middle  thread  of  the  lake  or  pond.4 

Where  lands  have  been  surveyed  and  laid  out  originally  by  the  United 
States  Government,  riparian  owners  of  «0?z-navigable  lakes  and  ponds  whose 
shores  were  meandered  by  the  government  surveyors  do  not  as  a  general  rule 
take  to  the  center  of  the  lake  or  pond,  but  only  to  low-water. mark.5  The 
contrary  rule  is  held  in  some  states,  which  makes  the  boundary  the  center  of 
the  lake  or  pond.6  If  the  lake  is  navigable  in  fact,  its  waters  and  bed  belong 
to  the  state  in  its  sovereign  capacity,  and  the  patentee  takes  the  fee  to  the 
low-water  line  only.7  The  meander-line  is  not  regarded  as  the  boundary  of 
lot-owners,  but  to  have  been  run  for  topography,  the  courts  giving  riparian 
rights  to  the  abutting  landowners.8  The  fact  that  the  number  of  acres  recited 

1  Bradley  v.  Rice,  13  Me.   198;  Water-       ney  v.  Young  (Vt.),  32  Atl.  Rep.  492,  or- 
man  v.  Johnson,  13  Pick.   261;  Payne  v.       dinary  low-water  mark. 

Woods,  108  Mass.   160;  State  v.  Oilman-  6  Lamprey  v.  Metcalf  (Minn.),  53  N.  W. 

ton,  9  N.  H.  461;  Fletcher  v.   Phelps,  28  Rep.    1139;    Olson  v.  Huntamer    (S.  D.), 

Vt.   257;    McBurney    v.  Young  (Vt.),  32  61  N.  W.  Rep.  4791  Forsythe  v.  Small,  7 

Atl.  Rep.  492;  Diedrichz/.  N.  W.  Ry.  Co.,  Biss.  (U.  S.)    201,    205    [1876].     And  see 

42  Wis.  248.     See  also  Noyes  v.  Board  of  Kirwan  v.   Murphy  (U.  S.  C.  C.  Minn.), 

Sup'rs,  73  N.  W.  Rep.  48o[i897];  Fullers.  85  Fed.  Rep.  275,  and  12  Amer.  &  Eng. 

Shedd,i6i  111.  462;  Trustees  of  Schools  v.  Ency.  Law  649. 

Schroll,  120  111.  509;  Olson  v.   Huntamer  7  Lamprey  v.  State,  52  Minn.  181;  Lam- 

(S.  D.),  61  N.  W.  Rep.  479;  Noyes  v.  Col-  prey   v.   Metcalf    (Minn.),  53  N.  W.  Rep. 

lins  (Iowa),  61  N.  W.  Rep.  250.  1139;    Nijes  v.  Cedar  Pt.  Club  (U.  S.  C. 

2  Weber    v.    Pere    Marquette    Co.,    62  C.),  85  Fed.  Rep.  45;  Wayzata  v.  Gt.  N. 
Mich.    626.  Ry.   Co.  (Minn.),   52  N.  W.  Rep.  913,  one 

3  Cobb  v.  Davenport,  32  N.  J.  Law  369.  side  of  a  street;  Schlosser  v.  Crookshank 

4  4  Am.  &  Eng.  Ency.  Law  833,  834,  and  (Iowa),  65  N.  W.  Rep.  344,  to  high-water 
cases  cited;  Lembeck  v.  Nye,  47  Ohio  St.  line. 

336.  8  Kntidson  v.  Omanson  (Utah),  37  Pac. 

5  Fuller  v.  Shed  (111.),  44   N.   E.   Rep.  Rep.     250;      Schlosser     v.     Crookshank 
286;  Edwards  v.  Ogle,  76  Ind.  302;  Noyes  (Iowa),  65    N.   W.   Rep.   344;    Kirwan  v. 
v.    Collins    (Iowa),    61    N.    W.   Rep.  479;  Murphy  (U.  S.  C.  C.  Minn.),  83  Fed.  Rep. 
Noyes  v.   Board  (Iowa),   73   N.  W.   Rep.  275;  Lally  v.   Rossman  (Wis.),  51   N.  W. 
480'.     But  see  Schlosser    v.     Crookshank  Rep.    1132;  Yates  v.   Milwaukee  (U.S.), 
(Iowa),    65    N.  W.  Rep.  344,  and  McBur-  10  Wall.  497. 


2QI  BOUNDARIES   ON  LAKES   AND   PONDS.  §421. 

in  the  government  patent  corresponds  with  the  quantity  within  the  meander- 
line  will  not  prevent  the  patentee  from  claiming  the  land  between  the 
meander-line  and  the  shore-line.1 

When  land  has  been  surveyed  by  the  government  and  subdivided  without 
meandering  the  shores  of  a  lake  or  pond  contained  therein,  and  without  res- 
ervation of  the  lake  or  pond,  and  the  section-lines  are  run  straight  across 
from  shore  to  shore,  the  purchaser  of  sections  or  subdivisions  acquires  title  to 
that  portion  of  the  bed  of  the  lake  included  in  the  subdivision.2 

The  United  States  Supreme  Court  states  the  rule  tovbe  that  by  the  common 
law,  under  a  grant  of  lands  bounded  on  lakes  or  ponds  which  are  not  tide- 
waters and  are  not  navigable,  the  grantee  takes  to  the  center  of  the  lake  or 
pond  ratably  with  other  riparian  proprietors,  if  there  be  such; 3  and  a  late  case 
in  New  York  says  that  the  presumption  in  that  state  is  that  lands  under  the 
waters  of  small,  inland,  non-navigable  ponds  and  lakes  belong  to  the  pro- 
prietors of  the  adjoining  lands,  and  the  same  rule  applies  in  the  legal  con- 
struction of  grants  of  land  bounded  on  fresh-water  streams.4 

This  case  substantially  overrules  an  earlier  case5  which  decided  that  a 
boundary  of  land  upon  a  fresh-water  pond  did  not  go  below  the  low-water 
mark.  The  New  York  courts  have  not  been  consistent  in  deciding  cases 
before  them  by  taking  as  a  basis  of  their  decisions  the  navigability  or  non- 
navigability  of  the  lake  or  pond.  Thus  in  one  case  it  was  shown  that  the 
lake  was  navigable  in  fact  and  had  been  navigated  for  over  thirty  years,  yet  it 
was  held  that  the  riparian  owners  held  title  to  the  center  of  the  bed  of  the 
adjoining  navigable  body  of  water.6 

It  would  seem  from  a  review  of  the  cases  on  this  subject  in  this -country 
that  no  very  definite  rule  has  yet  been  established  for  their  determination,  and 
that  each -case  must  be  decided  according  to  the  facts  of  that  particular  case. 

It  should  be  noted  that  where  an  estate  is  described  and  bounded  on  a 
natural  pond  it  will  not  be  limited  by  the  first  water  reached,  as  a  creek, 
inlet,  or  cove,  but  will  extend  to  the  body  of  the  pond  proper.7 

A  lot  of  land  was  conveyed  and  described  as  bounding  on  one  end  upon  a 
pond.  It  appeared  that  there  was  a  narrow  cove  or  arm  of  the  pond  extend- 
ing from  the  pond  across  the  lot,  and  that  if  the  land  conveyed  was  limited 
by  this  cove  the  lines  would  not  correspond  with  those  of  the  adjoining  lots, 
and  there  would  remain  a  portion  of  the  land  not  conveyed  between  the  cove 

^chlosser   v.  Crookshank   (Iowa),  65  4  Gouverneur  v.  National  Ice  Co.,  15 

N.  W.  Rep.  344.  N.   Y.   355,  reversing  IT   N.   Y.  Supp.  87, 

2Stoner  v.   Rice  (Ind.),  22  N.  E.   Rep.  Crooked   Lake  Nav.  Co.  v.  Kenha  Nav. 

968;  Kean  v.  Roby  (Ind.),  42  N.  E.  Rep.  Co.,  4  N.  Y.  St.  Rep.  380,  affirmed  in  115 

ion.     See  Edwards  v.  Ogle,  76  Ind.  302;  N.  Y.  667. 

Ross  v.  Faust,  54  Ind.  471;  Ridgeway  v.  5  Wheeler  v.  Spinola,  54  N.  Y.  377. 

Ludlow,  58  Ind.  248;  Yates  v.  Milwaukee  6  Smith  v.  Rochester,  92  N.  Y.  463. 

(U.  S.),  10  Wall.  497.  7  Nelson    v.    Butterfield,    21    Me.    220. 

3Hardin  v.  Jordan,  140  U.  S.  371.  And  see  Mauser  v.  Blake,  62  Me.  38. 


§422.          OPERATIONS  PRELIMINARY   TO    CONSTRUCTION.  2$2 

and  the  pond.  It  was  therefore  held  that  the  land  extended  across  the  cove 
to  the  main  body  of  water  called  the  pond.1 

An  act  authorizing  the  board  of  commissioners  to  extend  its  driveway  over 
and  upon  the  bed  of  Lake  Michigan,  and  to  sell  and  convey  to  the  adjoining 
shore-owners  the  submerged  lands  which  might  be  reclaimed  in  extending 
such  driveway,  was  a  valid  exercise  of  legislative  discretion,  since  it  did  not 
interfere  with  the  rights  of  navigation  and  fishing.2 

Riparian  rights  proper  are  held  to  rest  upon  title  to  the  bank  of  the  body 
of  water,  and  not  upon  title  to  the  soil  under  the  water,  as  they  are  the  same 
whether  the  riparian  owner  owns  the  soil  under  the  water  or  not.  Accretion 
and  reliction  are  held  not  to  be  riparian  rights.3 

A  conveyance  of  land  by  metes  and  bounds  by  the  owner  of  land  extend- 
ing to  the  low-water  mark  on  a  lake  does  not  entitle  the  grantee  to  take  to 
such  low-water  mark  if  there  remains  a  strip  of  land  between  that  conveyed 
and  the  waters  of  the  lake  at  low-water  mark.4 

The  title  to  an  island  situated  within  100  rods  from  the  opposite  upland, 
there  being  no  channel  between  the  island  and  mainland  at  low  water,  does 
not  extend,  unless  by  special  grant,  to  a  flat  circling  the  island,  except  on  the 
side  towards  the  sea.  Nor  is  this  rule  varied  by  parole  proof  that  there  had 
been  anciently  a  channel  at  low  water  between  the  mainland  and  the  island, 
which  had  been  filled  up  by  the  slow  process  of  accretion.5 

422.  Boundaries  on  Artificial  Lakes  and  Ponds. — Land  bounding  upon 
a  lake  or  pond  which  has  been  made  artificially  by  backing  up  the  waters  of  a 
stream  extends prima  facie  to  the  middle  line  of  the  original  stream.6  A  grant 
bounded  on,  or  by,  an  artificial  pond,  and  not  expressly  or  by  clear  implication 
by  the  margin  of  it,  extends  to  the  middle  thread  of  the  original  stream  as  if 
no  pond  existed.  This  was  held  even  where  the  pond  had 'been  in  existence 
two  hundred  years.7  Whether  or  not  a  deed  to  land  described  as  "  bounded 
on  "  an  artificial  lake  conveyed  an  interest  in  the  lake  may  be  shown  by  an 
antecedent  contract  with  the  grantor  to  buy  the  land  under  the  lake;  such 
agreement  being  held  proof  of  the  intention  of  the  parties  to  convey  only  to 
the  margin  of  the  lake.8 

Where  a  natural  lake  or  pond  has  been  enlarged  artificially  and  its  surface 
is  thereby  raised,  the  boundary-line  of  land  described  as  bounded  by  such 
lake  or  pond  remains  the  same  as  if  the  land  were  bounded  upon  the  pond  in 
its  natural  state,  unless  the  pond  so  created  has  been  so  long  kept  up  as  to 
have  become  permanent  and  to  have  acquired  another  well-defined  boundary.9 

1  Nelson    v.    Butterfield,    21    Me.    220.       63  [1887]. 

And  see  Mauser  v.  Blake,  62  Me.  38.  6  Mauser  v.  Blake,  62  Me   38;   Phinney 

2  People  v.   Kirk  (111.  Sup.),  45  N.   E.       v.  Watts?  9  Gray  (Mass.)  269. 

Rep.  830.  7  Mill    River    Mfg.    Co.    v.    Smith,    34 

3Diedrich  v.  N.  W.  R.  Co.,  42  Wis.  298.  Conn.  462. 

*Slauson     v.     Goodrich    Transp.     Co.  8  Fowler  v.   Veerland  (N.   J.),    14  All. 

(Wis.),  69  N.  W.  Rep.  990.  Rep.  116  [1888]. 

5  Babson  v.  Taintor  (Me.),  10  Atl.  Rep.  9  Payne  v.  Woods,  108  Mass.  160. 


293  BOUNDARIES   ON  LAKES  AND   PONDS.  §423. 

Most  of  the  cases  upon  this  point  have  been  decided  in  states  which  hold  that 
land  bounded  by  a  natural  pond  or  lake  extends  only  to  the  low-water  mark,1 
and  so  the  rule  has  been  stated  that  if  a  natural  lake  or  pond  is  raised  or 
lowered  artificially  the  boundary-line  will  remain  at  the  original  low-water 
mark.2  The  question  does  not  seem  to  have  arisen  in  any  state  which  holds 
the  bed  of  non-navigable  lakes  and  ponds  to  belong  to  the  adjoining  owners. 
In  those  states  the  consistent  rule  would  be  that  land  bounded  on  an  arti- 
ficially raised  pond  will  extend  to  the  low-water  mark  of  the  pond  in  its 
natural  state  if  navigable,  and  to  the  middle  thread  of  the  pond  if,  in  its 
natural  state,  it  be  non-navigable.  A  conveyance  of  "  all  my  estate  to  the 
north  of  the  mill-pond,  .  .  .  including  the  mill-stream  and  mill  and  mill- 
pond,  with  all  its  privileges  and  appurtenances,  and  to  shut  the  mill-dam  at 
the  south  side  of  said  mill-pond,"  did  not  convey  any  land  beyond  high-water 
mark.3 

Whether  or  not  a  deed  to  land  described  as  "  bounded  on  "  an  artificial 
lake  conveyed  an  interest  in  the  lake  may  be  shown  by  an  antecedent  contract 
with  the  grantor  to  buy  the  land  under  the  lake;  such  agreement  being  held 
proof  of  the  intention  of  the  parties  to  convey  only  to  the  margin  of  the  lake.4 

423.  Shore,  Beach,  Bank,  or  Water's  Edge  of  Lakes  and  Ponds. — The 
rules  laid  down  in  the  preceding  sections  apply  when  the  call  for  boundary  is 
a  lake  or  pond,  or  where  the  land  is  said  to  be  bounded  by  or  on  or  running 
along  the  lake  or  pond.  Different  rules  prevail  when  shore,  bank,  or  wafer's 
edge  and  similar  words  are  used,  for  these  words  are  generally  held  to  show  a 
presumption  that  the  parties  have  waived  the  ordinary  rule  and  that  they 
meant  the  land  to  run  to  the  ordinary  low-water  mark  and  no  further.  As 
said  in  an  Indiana  case,5  "  The  conveyance  to  a  riparian  proprietor  may  be 
drawn  in  terms  so  restrictive  as  to  limit  his  title  to  the  bank  as  a  boundary 
when,  but  for  such  restrictions,  it  would  extend  to  the  thread  of  the 
stream."  * 

Deeds  in  a  chain  of  title  plainly  indicating  that  the  boundary  of  the  land 
is  the  bank  of  a  pond  pass  no  title  to  the  land  under  the  water,  either  to-  the 
grantees  in  such  deeds  or  to  their  grantees  and  assigns.  A  boundary  of  land 
on  the  edge  of  the  pond  is  not  a  boundary  by  a  stream  which  may  change  by 
gradual  washings  and  deposits;  but  the  boundary  is  limited  by  the  definite 
boundary  without  regard  to  the  contingent  subsidings  of  the  water  constitut- 
ing the  pond  and  thereby  leaving  the  land  dry.6  The  term  margin  of  the 
lake  is  a  term  of  unequivocal  import,  meaning  the  line  where  the  earth  and 
water  meet  around  the  lake.  By  the  use  of  these  words  the  parties  have 

1  Payne  v.  Woods,  supra.  4  Fowler  v.   Veerland    (N.  J.),   14    Atl. 

2  4  Amer.  &  Eng.  Ency.  of  Law  837.  Rep.  116  [1888]. 

3  Roberts  v.  Baumgarten  (N.  Y.),  18  N.  5  Ross  v.  Faust,  54  Ind.  471. 

E.  Rep.  96  [1889].  6  Holden  v.  Chandler,  61  Vt.  291. 

*  See  Sees.  405-7,  supra. 


§424-          OPERATIONS  PRELIMINARY   TO    CONSTRUCTION.  294 

declared  their  intention  to  make,  not  the  middle,  but  another  part  of  the  lake 
—the  edge  of  the  water — the  boundary-line.  No  other  construction  can  be 
given  to  the  words  the  parties  themselves  have  chosen  without  doing  violence 
to  their  meaning;  and  an  intention  contrary  to  the  one  expressed  by  the  very 
words  selected  by  the  parties  themselves  cannot  be  presumed.1 

The  grantee  of  a  deed  that  conveyed  "  the  western  portion"  of  certain 
lands  "  bounded  on  the  south  by  C.  lake,  and  meandering  along  the  water's 
edge  eastward  to  a  stake  at  the  lake  low-water  mark, "  acquired  thereby  no 
title  to  any  of  the  portion  covered  by  water; 2  and  it  was  held  in  New  York 
that  the  boundary  on  an  artificial  pond  when  described  "  to  commence  at  a 
stake  near  the  high-water  mark  of  the  pond,  and  to  run  thence  along  the 
high-water  mark  of  the  said  pond  to  the  upper  end  of  the  pond, ' '  was  fixed 
and  permanent,  and  that  the  boundary  did  not  change  in  consequence  of 
accretion  or  of  gradual  receding  of  the  waters.  This  decision  was  doubtless 
due  to  the  nature  of  the  body  of  water,  the  high-water  mark  of  which  could 
be  changed  by  the  grantor  by  adjusting  the  height  of  his  dam.  It  was 
founded  on  the  evident  intention  of  the  parties.  The  court  considered  the 
boundary  fixed.3 

When  an  artificial  pond,  which  had  been  in  existence  for  more  than  forty 
years,  and  which  had  thus  become  a  permanent  body  of  water,  and  was  still 
kept  up  and  maintained  as  such,  and  which  had  a  margin  of  land  between  its 
high-  and  low-water  marks,  was  described  as  a  boundary,  it  was  held  that  the 
land  so  conveyed  did  not  extend  to  the  thread  of  the  stream  from  whose 
waters  the  pond  was  formed,  but  only  to  the  low-water  mark  of  the  pond  at 
the  date  of  the  execution  of  the  deed.4 

424.  Receding  of  Waters  of  Lakes  and  Ponds. — This  topic  is  usually 
considered  in  the  larger  treatises  on  real  property  under  the  head  of  accretion. 
By  the  term  "  accretion  "  is  meant  the  gradual  and  imperceptible  accumula- 
tion of  land  by  natural  causes,  as  out  of  the  sea  or  a  river.  Accretion  of  land 
is  of  two  kinds:  (i)  by  alluvium,  which  is  that  increase  of  the  earth  on  a  shore 
or  bank  of  a  river,  or  on  the  shore  of  the  sea,  by  the  force  of  the  water,  as  by 
a  current  or  by  waves,  which  is  so  gradual  that  no  one  can  judge  how  much  is 
added  at  each  moment  of  time;  (2)  by  dereliction,  which  consists  in  the 
gaining  of  land  from  the  water  in  consequence  of  the  water  shrinking  back 
below  its  usual  mark.  Most  of  the  additions  to  the  shore  of  lakes  and  ponds 
are  caused  by  the  dereliction  or  receding  of  the  waters  of  such  lakes  and 
ponds.* 

Land  formed  by  dereliction  or  gradual  subsidence  of  the  water  belongs  to 

1  Lembeck  v.  Nye,   47  Ohio   State  336,  2  Brophy  -v.  Richeson,  137  Ind.  114. 

citing   McCulloch  v.   Aten,  2    Ohio   308;  3  Cook  v.  McClure,  58  N.  Y.  437. 

Lamb  v.  Richets,   n  Ohio  311;  Hopkins  4  Boardman    v.    Scott    (Ga.),    30  S.   E. 

v.  Kent,  9  Ohio  13;  Gould  on  Waters,  §       Rep.  982  [1897]. 
199. 

*  See  Sees.  371-400,  supra. 


295  BOUNDARIES   ON  LAKES  AND    PONDS.  §  424. 

the  owner  of  the  land  to  which  it  is  an  addition,  and  this  doctrine  is  equally 
applicable  to  tide-waters  and  to  non-tidal  rivers  and  lakes.  If  the  waters  in  a 
navigable  lake  recede  gradually  and  insensibly,  the  land  gained  belongs  to  the 
adjacent  riparian  owners;  but  if  the  receding  be  sudden,  the  increase  belongs 
to  the  state.  It  was  so  held  in  a  case  in  North  Carolina  wherein  it  was  proved 
that  the  lake  upon  which  the  lands  in  question  were  bounded  was  navigable, 
and  the  court  said:  "  If  the  receding  of  the  lake  was  sudden  and  sensible,  the 
land  which  it  had  covered  and  which  by  its  dereliction  became  dry  would  not 
be  and  ought  riot  to  be  included  in  defendant's  grant;1  but  if  the  waters 
receded  gradually  and  insensibly,  the  lake  ought  to  be  considered  one  of  the 
defendant's  boundaries."  It  is  necessary  that  the  fact  be  established  whether 
the  water  of  the  lake  receded  imperceptibly  or  not  from  the  land  in  question, 
because  on  that  question  the  rights  of  the  parties  depend.2  Gradual  recession 
of  the  waters  of  a  meandered  lake  gives  riparian  proprietors  the  right  to  the 
new  land  by  following  the  recession  of  waters  to  their  edge;  but  a  consider- 
able body  of  new  land  suddenly  or  perceptibly  formed  by  reliction  belongs  to 
the  state,3  as  by  a  river  cutting  into  it. 

A  timber-culture  entryman  who  has  obtained  a  patent  from  the  govern- 
ment acquires  in  reliction  to  the  center  of  the  lake  occasioned  by  its  drying 
up  after  the  day  of  his  entry;4  and  the  patentee  of  a  fractional  subdivision 
bordering  on  a  navigable  lake  which  has  been  meandered  in  the  government 
surveys  takes  title  to  all  land  beyond  the  meandered  line  formed  by  the 
gradual  subsidence  of  the  lake,  since  the  boundary  is  not  the  meandered  line, 
but  the  water-line.5 

A  railroad  company  does  not,  it  seems,  acquire  by  such  reclamation  an 
absolute  fee  in  the  lands  reclaimed,  or  any  right  of  use,  disposal,  or  control, 
except  for  a  right  of  way  and  for  railroad  purposes;  nor  does  it  thereby 
acquire  any  rights,  as  a  riparian  owner,  to  reclaim  still  further  lands  from  the 
lake  for  its  use,  or  for  the  construction  of  piers,  docks,  and  wharves  in  further- 
ance of  its  business.6  In  respect  to  lots  bordering  on  the  lake,  and  to  which 
the  company  acquired  the  fee  by  purchase,  it  does  become  vested  with  riparian 
rights,  and  is  entitled  to  fill  up  shallow  waters  of  the  lake,  and  to  construct 
piers,  wharves,  docks,  and  slips  not  extending  beyond  the  point  of  navi- 
gability.7 

When  the  waters  of  a  lake  are  lowered  by  an  act  of  public  officers  in 

1  Fuller  v.  Shedd,  161    111.  462;  Noyes  Rep.  350.     But   see  Hodges  v.  Williams, 
v.  Collins,  92  Iowa  566.  95  N.  C.  331,  and  Noyes  v.  Board  of  Su- 

2  Murry  v.   Sermon,  I    Hawks'  R.    56.  pervisors  of  Harrison  County,  73  N.  W. 
See   Noyes  v.  Board    (Iowa),    73  N.   W.  Rep.  480. 

Rep.  480  [1897].  6  Illinois  Cent.  R.  Co.  v.  State,  13  Sup. 

3  Fuller  v.  Shedd,  161   111.  462  ;  Noyes       Ct.  Rep.  no. 

v.  Collins,  92  Iowa  566.  7  Illinois  Cent.  R.  Co.  v.  State,  13  Sup. 

4  Olson  v.  Huntamer  (S.  D.),  61   N.  W.  Ct.  Rep.  no,  affirming  33  Fed.  Rep.  730. 
Rep.  479.  See      dissenting      opinions    of     Justices 

5  Knudson  v.  Omanson  (Utah),  37  Pac.  Shiras,  Gray,  and  Brown. 


§  424'          OPERATIONS  PRELIMINARY    TO    CONSTRUCTION. 

making  an  improvement,  riparian  owners  do  not  lose  their  rights  in  the  lake, 
but  are  entitled  to  free  access  to  the  waters  of  their  lands.1  * 

After  granting  land  bordering  on  a  meandered  non-navigable  lake  the 
Federal  Government  cannot  grant  the  land  lying  under  the  water  or  that  formed 
by  a  recession  of  the  waters,  and  thereby  deprive  the  original  grantees  of  their 
rights  as  riparian  owners.2 

The  shore-owner  of  a  lake  may  fill  in  and  dock  out  in  front  of  his  land  so 
long  or  so  far  as  does  not  interfere  with  public  rights.3  Such  license  when 
acted  upon  becomes  irrevocable.  The  Supreme  Court  of  the  United  States 
shas  held  that  a  riparian  owner  on  the  Great  Lakes,  as  well  as  on  tide-waters, 
has  by  grant,  statute,  or  immemorial  usage  the  right  to  build  out  such  con- 
venient wharves  as  do  not  obstruct  the  public  rights  of  navigation.4  On  the 
little  lake  Muskegan,  in  the  state  of  Michigan,  the  Supreme  Court  of  that 
state  has  held  that  the  riparian  owners  have  title  to  the  land  under  the  water 
so  far  out  into  the  lake  as  it  can  be  made  beneficial  for  private  and  personal 
use,  subject  to  the  paramount  public  rights  of  navigation  and  the  incidents 
thereto.  The  decision  seems  to  have  been  based  on  the  assumption  that 
neither  the  Federal  Government  nor  state  governments  have  ever  asserted  any 
right  to  the  small  lakes  within  the  boundary-lines  of  that  state. 5 

1  Priewe    v.  Land  &  Imp.   Co.  (Wis.),  2  Fuller  v.  Shedd  (111.  Sup.),  44  N.  E. 

•67    N.    W.    Rep.    918.     See   Verplank    v.  Rep.  286. 

Hall,  37  Mich.  79.     As    to   the    right  to  3  N.  J.  Z.  &  I.  Co.   v.  Morris    C.   &  B. 

draw  down  the  waters  of  a  lake  to  the  Co.,  (N.  J.)  15  Atl.  Rep.  227. 

damage  and  injury  of  riparian  owners,  4  Button  v.  Strong,  i  Black  23. 

see  Smith  v.  Youmans  (Wis.),  70  N.  W.  5  Rice  v.  Ruddiman,  10  Mich.   125. 
Rep.  1115. 

*  See  Sees.  81-140,  supra. 


CHAPTER   XXIV. 
BOUNDARIES   OF   ISLANDS. 

431.  Ownership  of  Islands. — Questions  of  ownership  and  boundaries  of 
islands  are  determined  by  the  same  principles  of  the  law  as  are  applicable  to 
the  mainland.  These  principles  have  been  already  discussed,*  and  the 
different  determinations  made  in  regard  to  the  ownership  of  lands  under 
water  in  the  various  states  have  been  pointed  out.  These  varying  decisions 
regarding  ownership  and  boundaries  of  islands  are  largely  due  to  the  determi- 
nation of  what  is  a  navigable  stream,  and  it  will  be  well  to  review  here  briefly 
the  laws  regarding  navigability,  the  divergence  in  which  creates  the  difficulty. 

The  divergence  arises  from  the  inadequacy  of  the  old  common-law  rule 
prevailing  in  England  to  meet  the  conditions  prevailing  here.  Thus  by 
common  law  the  ownership  of  the  bed  or  soil  of  rivers  and  waters  was  made 
to  depend  on  the  navigability  or  non-navigability  of  the  water  covering  the 
land,  and  what  waters  should  be  considered  navigable  and  what  should  not 
was  in  England  clearly  and  certainly  established,  i.e.,  that  navigable  waters 
are  those  in  which  the  tide  ebbs  and  flows.  This^  was  a  convenient  and  satis- 
factory rule  for  England  where  waters  in  which  the  tide  did  not  flow  could 
not  be  put  to  any  practical  commercial  use.  When  the  common  law  was 
adopted  by  the  various  states  this  holding  became  a  part  of  the  law  of  this 
country;  but  when  questions  whose  solution  depended  upon  this  rule  came 
before  the  courts  of  this  country  it  was  found  that  the  rule  was  totally 
inadequate  for  the  conditions  prevailing  here,  where  there  are  numberless 
rivers  and  bodies  of  water  which  can  be  put  to  great  commercial  use  and 
which  are  in  fact  navigable  but  in  which  there  is  no  tide  movement. 

It  has  been  shown  that  the  common  law  recognizes  a  distinction,  as  to 
the  property  of  the  soil  of  rivers  or  waters  navigable  and  those  which  are  not 
navigable.  The  former  belong  to  the  public,  the  latter  belong  to  those  whose 
land  borders  on  the  waters ;  and  they  have  a  property  in  the  bed  or  soil  of  the 
river  under  the  water,  subject  to  an  easement  or  right  of  passage  up  and  down 
the  stream  in  boats  or  other  craft  for  purposes  of  business,  convenience,  and 
pleasure.  This  is  called  in  the  civil  law  a  servitude,  which  is  quite  consistent 

*  See  Sees.  371-420,  supra. 

297 


§43J-  OPERATIONS  PRELIMINARY    TO    CONSTRUCTION.  298 

with  the  right  of  property.  There  is  an  important  difference  between  the 
common  and  the  civil  law  in  regard  to  the  rights  of  the  public  and  individuals 
upon  the  subject.  By  the  common  law  the  right  of  the  king  or  the  public 
was  limited  to  those  places,  whether  bays,  coves,  inlets,  arms  of  the  sea,  or 
rivers,  in  which  the  tide  ebbed  and  flowed,  this  being  the  common-law  defini- 
tion of  navigable  waters;  whereas  by  the  civil  law  all  rivers,  provided  they  are 
navigable  by  ships  or  boats  or  perhaps  any  other  floating  vehicle,  were  con- 
sidered public  property.  The  doctrine  of  the  common  law  is  recognized  to 
the  fullest  extent  in  some  of  the  United  States,  that  of  the  civil  law  in  others; 
and  in  still  others  the  doctrine  of  the  common  law  is  received,  restricted, 
and  modified. 

According  to  the  rule  everywhere  adopted  in  this  country  and  in  England, 
if  an  island  rises  in  the  sea,  it  belongs  to  the  sovereign  or  the  public,  though 
by  the  civil  law  it  belongs  to  the  discoverer  or  first  occupant.  If  an  island 
be  formed  in  a  navigable  river,  the  same  rule  of  the  common  law  gives  it  to 
the  sovereign,  while  by  the  civil  law  it  belongs  to  the  owners  of  the  land  on 
each  side. 

Should  an  island,  however,  arise  in  an  unnavigable  river,  both  the  civil 
and  the  common  law  agree  in  assigning  it  to  the  adjoining  proprietors.  If 
the  middle  line  of  the  stream  bisects  the  island  equally,  each  proprietor  will 
take  an  equal  share;  but  if  unequally,  then  the  larger  share  will  belong  to  him 
to  whose  land  it  is  nearest.  If  the  island  arise  not  in  the  middle  but  entirely 
on  one  side  of  the  stream,  then  the  whole  of  the  island  will  belong  to  the 
owner  of  the  land  on  that  side.  This  is  the  general  rule  upon  the  subject, 
and  it  is  usually  applied  by  all  the  courts  of  this  country  because  the  adjoin- 
ing landowners  own  the  land  under  non-navigable  waters. l 

Thus  where  an  island  not  otherwise  lawfully  appropriated  is  so  formed 
under  the  bed  of  a  river  not  navigable  as  to  divide  the  channel  and  lie  partly 
on  each  side  of  the  thread  of  the  river,  it  will  be  divided  between  the  riparian 
proprietors  on  the  opposite  sides  of  the  river  according  to  the  original  thread 
of  the  river.2  An  island  in  a  non-navigable  river  if  all  on  one  side  of  the 
dividing-line  belongs  to  him  who  owns  the  bank  on  that  side.3 

In  all  cases  where  the  title  to  the  soil  under  the  water  is  in  the  public,  a 
newly  formed  island  in  such  body  of  water  belongs  to  the  public,  as  in  the 
case  of  the  sea,  navigable  rivers,  and  the  large  fresh-water  lakes -of  this  coun- 
try. And  in  all  cases  where  the  soil  under  the  water  belongs  to  the  riparian 
proprietors  bordering  upon  the  water,  the  newly  formed  island  in  such  body 
of  water  will  belong  to  the  riparian  owner.  That  is  to  say,  the  doctrine  which 

1  Hopkins    Academy  v.    Dickenson,    9  4    Rich.  68;  Butler   v.  G.  R.  &  I.  R.  Co., 

Cush.  (Mass.)    548;    Comm.   v.    Alger,  7  85  Mich.  246. 

Cush.  (Mass.)  97;    Ingraham   v.  Wilkin-  2  Deerfield  v.    Arms,    17  Pick.   (Mass.) 

son,  4  Pick.  (Mass.)  268;    Pratt    v.  Lam-  41;  Strange  v.  Spalding  (Ky.),  29    S.  W. 

son,    2    Allen    (Mass.)    284;    Adams    v.  Rep.  137. 

Beese,  2  Conn.  481;    Bard  well   v.  Ames,  3  Ingraham      z/.     Wilkinson,    4     Pick. 

22  Pick.  333;  McCullough  v.  Nail  (N.  C.),  (Mass.)  268. 


2Q9  BOUNDARIES   OF  ISLANDS.  §431- 

governs  in  respect  to  the  soil  under  the  water  will  control  in  respect  to  the 
island  formed  in  such  water.  The  owner  of  the  soil  under  the  water,  by  the 
general  laws  of  property,  becomes  entitled  as  of  right  to  all  accessions.  All 
authorities  are  agreed  that  if  an  island  arises  in  the  sea  it  belongs  to  the  sov- 
ereign or  the  public,  because  in  all  cases  the  sovereign  is  the  owner  of  land 
under  tide- water. 1 

The  doctrine  upon  the  subject  will  be  understood  by  a  reference  to  cases. 
A  leading  case  of  Massachusetts  (1826)  which  involved  the  right  to  an  island 
in  the  river  Pawtucket  recognized  the  rule  of  the  common  law  that  the 
property  in  the  soil  of  rivers  not  navigable,  subject  to  public  easements,  be- 
longed to  those  whose  lands  bordered  upon  them;  and  from  this  right  of 
property  in  the  soil  in  the  bed  of  the  river  the  court  deduced  the  right  of 
property  in  an  island  which  gradually  arose  above  the  surface  and  became 
valuable  for  use  as  land.  Taking  the  thread  of  the  river  as  it  was  immediately 
before  such  island  made  its  appearance,  this  rule  would  give  the  whole 
island  formed  in  the  bed  o'f  the  river,  if  it  were  wholly  on  one  side  of  the 
thread  of  the  river,  to  the  owner  on  that  side;  but  if  it  were  situated  partly 
on  one  and  partly  on  the  other  side  of  the  thread  of  the  river,  it  should  be 
divided  by  such  line,  and  held  in  severalty  by  the  adjacent  proprietors.  The 
dividing-line  between  the  adjacent  proprietors  was  run  in  the  same  manner  as 
if  there  were  no  island  in  the  river.2 

The  same  doctrine  was  approved  in  1852,  when  it  was  held  that  if  the 
course  of  a  river  not  navigable  changes  and  cuts  off  a  point  of  land  on  one 
side,  making  an  island,  such  island  still  belongs  to  the  original  owner.  In 
such  case,  if  the  old  bed  of  the  river,  being  gradually  deserted  by  the  current, 
had  filled  up  and  new  land  was  formed,  such  newly  formed  land  would  have 
belonged  to  the  opposite  riparian  proprietors,  respectively,  to  the  thread  of  the 
old  river.  And  if  new  land  was  formed  in  the  river  above  said  island  arid  not 
by  slow,  gradual,  and  insensible  accretion  to  it,  such  new  land  above  would 
belong  to  the  opposite  riparian  proprietors  to  the  filum  aqua  or  thread  of  the 
river.  The  thread  of  the  river  in  such  case  was  held  to  be  the  median  line 
between  the  shores  or  natural  water-lines  on  each  side  at  the  time  the  new 
land  was  formed,  without  regard  to  the  channel  or  deepest  part  of  the  stream.3 
The  reader  must  determine  in  each  case  whether  or  not,  under  the  laws  of  his 
state,  the  river  in  which  the  land  is  situated  would  be  held  navigable  or  non- 
navigable.*  The  doctrine  which  governs  in  respect  to  the  soil  under  the 
water  will  control  in  respect  to  the  island  formed  in  such  water. 

Where  a  stream  or  body  of  water  in  which  an  island  arises  is  navigable  in 

1  Hale  De  Jure  Marts,  ch.  4  and  6;  Mor-  3  Adams  v.  Beese,  2  Conn.  481;  Bard- 

ris   v.   Brook  (Del.  C.  P.),  53  Am.  Rep.  well  v.  Ames,  22  Pick.  333;  McCullough 

215-  v.  Wall  (N.    C.),  4   Rich.    68;  Tyler   on 

2Ingraham  v.  Wilkinson,  4   Pick.  268;  Boundaries  74,  75. 
Deerfield  v.  Arms,  17  Pick.  41. 

*  See  Sees  231-250  supra. 


§43r-          OPERATIONS   PRELIMINARY    TO    CONSTRUCTION.  3OO 

fact  but  there  is  no  tide  movement,  there  is  great  divergence  in  the  holdings. 
In  some  states  such  an  island  belongs  to  the  public,  but  many  states  give  the 
ownership  of  the  soil  under  navigable  waters  to  the  riparian  owner.  The 
whole  question  depends  upon  the  construction  of  the  word  "navigable";  but 
wrhen  the  ownership  of  the  land  under  the  water  is  once  determined  the  owner- 
ship of  the  island  in  such  waters  is  clear.  As  stated  by  the  United  States 
Supreme  Court  it  is:  "If  an  island  or  dry  land  forms  upon  that  part  of  the 
bed  of  the  river  which  is  owned  in  fee  by  a  riparian  proprietor,  the  same  is 
the  property  of  such  riparian  proprietor.  He  retains  the  title  to  the  land 
previously  owned  by  him,  with  the  new  deposits  therein."1 

The  result  of  the  diverging  views  is  curiously  shown  in  the  states  of  Illi- 
nois and  Missouri.  The  courts  of  Illinois  have  held  that  the  Mississippi  River 
is  not  a  navigable  stream  at  common  law  because  there  is  no  tide  movement 
in  it,  and,  applying  the  common-law  rule,  hold  that  riparian  proprietors  own 
to  the  middle  of  the  river  or  of  a  navigable  slough  or  arm  thereof,  and  that 
therefore  the  riparian  owner  is  entitled  to  any  islands  formed  upon  the  bed 
of  the  stream.2  But  the  courts  of  Missouri  hold  that  the  Missouri  and  Mis- 
sissippi rivers  are  in  fact  navigable,  and  then  applying  the  old  common-law 
rule  that  the  state  owns  soil  under  navigable  waters,  they  hold  that  the  private 
ownership  of  lands  bordering  on  those  rivers  stops  at  the  water's  edge.  There- 
fore it  was  held  that  the  owner  of  contiguous  lands  is  not  the  owner  of  an 
island  which  springs  up  in  the  middle  of  the  stream  whether  the  island  be 
on  one  side  or  the  other  of  the  thread  of  the  river.  He  goes  only  to  the  mar- 
gin of  the  river.3 

Under  this  conflict  of  laws  the  determination  of  the  ownership  of  an  island 
in  the  Mississippi  River  between  the  states  of  Illinois  and  Missouri  would  be 
an  interesting  problem.  It  might  have  two  different  solutions,  depending 
upon  the  state  in  which  the  suit  was  brought.  This  same  interesting  circum- 
stance might  arise  on  other  great  rivers  such  as  the  Ohio,  the  Missouri,  the 
Red,  or  the  Wabash  River. 

One's  ownership  of  mainland  on  the  shore  of  one  of  the  Great  Lakes  does 
not  make  him  owner  of  an  island  lying  therein  600  feet  from  the  shore.4  •  The 

1  St.  Louis  v.  Rutz,  138  U.  S.  245.  *  Cooley  v.  Golden,  117  Mo.  33;  Benson 

2Middleton    v.    Pritchard,   4    111.    510;  v.     Morrow,    61     Mo.     347;     Barney    v. 

Fuller  v.  Dauphin,    124    111.    545    [1888];  Keokuk,  94  U.  S.   324;    Naylor    v.    Cox 

Prest.  Kaskaski  v.  McClure  (111.).  47  N.  (Mo.),  21  S.  W.  Rep.   589;  Buse    v.   Rus- 

E.  Rep.  72;  Griffin    v.    Johnson   (111.),  44  sell,  86  Mo.  211;  Perkins  v.  Adams  (Mo.), 

N.    E.    Rep.    206.     And  ste    Fletcher  v.  33  S.  W.  Rep.   778,    on    Missouri    River. 

Thunder    Bay    Co.    (Mich.),  citing  many  And  see  Victoria   v.   Schott  (Tex.),  29  S. 

cases  [1883];  Gas-It.  Co.  v.  Indus. Wks.,  28  W.     Rep.     681;     16  Am.    &    Eng.    Ency. 

Mich.  181;   People  v.  Warner  (Mich.),  74  Law  251.     But  see   Jones  v.  Soulard,  24 

N.  W.  Rep.    705   [1898];   Head   v.  Ches-  How.  (U.  S.)  41. 

brough,    13  Ohio    Cir.    Ct.    Rep.  354;    i  *  Sherwood  v.  Commissioner   (Mich.), 

Amer.  &  Eng.  Ency.  Law  139;  16  Amer.  71  N.  W.  Rep.  532. 

&  Eng.  Ency.  Law  251,  253. 


301  BOUNDARIES   OF  ISLANDS.  §432. 

limit  of  ownership  is  marked  by  the  tide-line.1     The  title  of  a  riparian  owner 
upon  Lake  Huron  does  not  extend  to  an  island  within  the  lake.2 

432.  Boundaries  of  Islands. — If  land  be  separated  from  an  island  by 
water,  as  a  slough,  at  the  time  of  the  grant  or  original  survey,  and  the  slough 
afterward  so  fills  up  as  to  connect  the  mainland  and  the  island,  the  question 
of  the  dividing-line  between  the  two  owners  is  one  depending  upon  the  man- 
ner in  which  the  newly  made  land  has  been  formed.  If  the  soil  has  been 
added  by  accretions  slowly  and  imperceptibly,  each,  respectively,  is  entitled 
to  the  accretion  to  his  bank  or  shore,  and  the  dividing-line  will  be  the  line  of 
contact  where  the  two  banks  or  water-lines  come  together. 

If  the  stream  or  slough  gradually  fills  up  as  the  water  recedes,  the  same 
principle  is  applicable,  and  the  new  land  belongs  to  the  riparian  owner  from 
whose  shore  the  water  receded ;  and  it  was  held  to  be  the  same  whether  the 
stream  was  navigable  or  non-navigable.  If,  however,  the  slough  simply  fills 
up  from  the  bottom,  or  by  deposits  within  its  bed,  and  is  not  formed  by  accre- 
tions to  the  bank,  then  the  center  (middle)  of  the  slough  between  the  mainland 
and  the  island  will  be  the  boundary-line,  i.e.,  the  boundary-line  will  be  as  it 
was  before  the  water  left  it.3 

Where  additions  to  the  shore  of  an  island  belonging  to  a  grantee  of  the 
government  are  due  to  the  imperceptible  accumulation  of  soil,  they  belong  to- 
the  owner.4 

Alluvion  deposited  against  an  island  in  a  lake  and  a  neighboring  lot,  so 
as  to  connect  them,  must  be  equally  divided  between  the  owners  of  both.5 

Where  the  mainland  on  both  sides  of  a  stream  and  an  island  dividing  the 
stream  have  been  surveyed  and  sold  by  the  government  as  separate  parcels, 
the  middle  line  is  established  in  the  center  of  the  channels  on  both  sides  of 
the  island,  between  it  and  the  mainland,  as  though  two  distinct  streams 
existed.6 

People  v.  Warner   (Mich.),  74  N.  W.  6  Bigelow  v.  Hoover  (Iowa),  52  N.  W. 

Rep.  705  [1898].  Rep.  124. 

2  Sherwood  v.  Commissioners  (Mich.),  6  West  v.  Fox  River  Paper  Co.  (Wis.), 
71  N.  W.  Rep.  532.  52  N.  W.  Rep.  803.     See  Croker  v.  Bragg- 

3  Buse  v.  Russell,  86  Mo.  209.  (N.  Y.),  10  Wend.  260;  Strange  v.  Spald- 
*  People   v.   Warner    (Mich.),  74  N.  W.       ing  (Ky.),  29  S.  W.  Rep..  137. 

Rep.  705  [1898]. 


CHAPTER  XXV.       , 
BOUNDARIES   ON  STREETS   AND    ROADS. 

441,  Property  in  Streets  and  Ways. — A  few  remarks  may  not  be  out  of 

place  as  to  the  nature  of  the  property  which  an  abutting  owner  has  in  a  street 
or  way.  It  is*  generally  described  as  a  title  in  fee-simple,  subject  to  an  ease- 
ment of  the  public  to  enjoy  the  use  of  the  land  for  all  purposes  of  travel  and 
locomotion.  In  villages  and  cities  in  this  country  it  is  often  subject  by 
statute  to  a  further  servitude  of  water-  and  gas-pipes,  telegraph  and  telephone 
lines,  and  other  conveniences,  necessaries,  and  comforts  of  city  life.  These 
burdens  upon  streets  are  sometimes  acquired  without  the  aid  of  the  statute, 
by  prescription  (twenty  years'  use  in  some  states),  if  the  burdens  are  permitted 
by  abutting  owners.  The  right  may  be  so  acquired  as  agajnst  the  abutting 
owners  of  the  street,  but  probably  not  against  the  public.  Custom  cannot 
authorize  such  a  trespass.  If  property  owners  would  prevent  such  prescriptive 
rights  from  being  acquired  in  the  street  in  front  of  their  property,  they  should 
remove  them,  or  have  an  injunction  issued  to  restrain  their  erection,  under 
the  claim  that  they  are  a  permanent  trespass  or  a  nuisance.  * 

In  New  York  state  the  opinion  has  been  expressed  that  when  land  is 
dedicated  for  use  as  a  public  street  it  is  part  of  the  purpose  in  view  that  it 
shall  be  used  not  only  for  passage,  but  for  all  such  incidental  purposes  as 
may  be  necessary,  appropriate,  and  usual  for  the  proper  enjoyment  of  such 
streets,  including  the  building  of  sewers.1  In  Brooklyn  the  fee  of  an  old. 
Dutch  road,  and  not  a  mere  easement  therein,  was  in  the  public  under  the 
Dutch  law.2 

The  Indiana  courts  have  held  that  abutting  lot-owners,  whose  title 
extended  to  the  middle  of  a  highway  forty  feet  in  width,  could  not  maintain 
an  action  for  damages  for  an  unlawful  obstruction,  eleven  feet  wide,  caused 
by  the  construction  of  a  railroad  embankment  on  the  opposite  side  of  the 
road,  the  only  effect  of  which  was  to  render  access  to  his  property  more  diffi- 
cult and  inconvenient,  and  to  force  travel  nearer  to  his  lots,  no  physical 
invasion  of  his  rights  or  pecuniary  damage  being  shown.3 

1  Matter  of  City  of  Yonkers,  117  N.  Y.       N.  Y.  Supp.  87. 

564  [1889].  3  Indiana,  B.  &  W.   Ry.    Co.  v.  Eberle 

2Mott  v.  Clayton,  9  App.  Div.   181,  41       (Ind.),  n  N.  E.  Rep.  467  [1887]. 

*  See  Sees.  671-700,  infra. 

302 


303  BOUNDARIES   ON  STREETS  AND   ROADS.  §  442. 

A  deed  in  which  the  description  of  property  is  followed  by  a  reservation 
of  a  portion  of  that  described  to  be  used  for  a  specific  purpose,  as  an  alley, 
conveys  the  fee  of  the  part  or  portion  reserved  subject  only  to  an  easement 
declared.1 

In  New  York,  where  a  deed  conveying  '  '  all  that  certain  water  and  vacant 
land  and  soil  under  water"  described  by  metes  %and  bounds,  excepted  so 
much  as  to  form  part  of  a  street  and  certain  avenues,  "  for  the  use  and  purpose 
of  public  streets,  avenues,  and  highways,"  it  was  held  that  the  fee  to  the 
parts  excepted  remained  in  the  grantor  though  they  are  never  used  for  the 
purpose  mentioned.2 

When  a  city  has  placed  the  curb  on  the  opposite  side  of  the  street  so  as  to 
leave  a  space  between  the  curb  and  the  sidewalk  for  trees  of  ornamentation 
on  one  side,  while  upon  the  other  side  only  a  place  for  a  sidewalk  was  left 
and  of  less  width  than  provided  by  the  ordinance,  the  city  is  not  liable  in 
•damages  for  such  acts  of  its  officials.3 

A  right  of  way  created  by  deed  to  the  abutting  owner  cannot  be  defeated 
by  later  deeds  of  other  abutting  portions  giving  power  to  alter  and  rearrange 
the  driveway  in  a  certain  event.4 

442.  Rights  of  Abutting  Owners  to  the  Soil  of  Streets.  —  Subject  to  these 
•easements  and  burdens,  the  abutting  owner  has  the  same  general  property 
rights  in  the  street  fronting  his  premises  as  he  has  in  the  lot  itself,  such  rights 
•extending  to  the  middle  line  of  the  street.  He  has  the  exclusive  right  to  the 
soil,  subject  to  the  right  of  way  of  the  public.5  He  may  not  remove  it  to 
render  the  way  dangerous  or  inconvenient.  This  property  is  also  subject  to 
the  reasonable  control  of  the  state,  county,  and  village.  Villages  are  incor- 
porated by  act  of  legislature,  with  power  to  keep  all  their  streets  and  alleys  in 
repair  and  make  such  ordinances  in  relation  thereto  as  may  be  necessary  and 
expedient,  and  they  may  make  ordinances  imposing  a  penalty  upon  persons 
removing  soil  from  their  streets.  Owners  of  the  fee  of  the  streets  have  no 
right  to  remove  or  authorize  the  removal  of  gravel  or  dirt,  contrary  to  such 
an  ordinance,  without  being  liable  to  its  penalty.6  The  city  cannot  appro- 
priate it  or  authorize  the  removal  of  the  soil,  except  what  is  necessary  for  the 
purposes  of  construction  and  repair  of  its  streets.  The  rights  of  the  public  in 
the  streets  are  pre-eminent,  and  when  the  improvement  of  the  same  requires 
the  taking  away  of  material  from  one  part  to  repair  another  part,  it  has  been 
held  that  probably  the  public  easement  would  justify  the  appropriation  of  so 
much  material  only  as  the  process  of  construction  and  repair  of  the  streets 


v.    Salentine  (Wis.),  66  N.  W.  N.  E.  Rep.  1035. 

Rep.  395.  5  Columbus    &  W.     Ry.    v.    Witherow 

2  New    York  v.  New  York  Cent.,  etc.,  (Ala.).  3  So.  Rep.    23  [1888];  Bradley  v. 
R.  Co.  (Sup.),  23  N.  Y.  Supp.  562.  Pharr  (La.),  12  So.  Rep.  618. 

3  English   v.  Danville   (111.),    48  N.   E.  6  Palatine   v.    Krueger   (111.),  12    N.  E. 
Rep.  428  [1897],  99  111.  App.  288.  Rep.  75  [1887],  reversing  20  Brad  well  420 

4Boland  v.  St.   John's  Sc.   (Mass.),  39  [1885]. 


§443-  OPERATIONS  PRELIMINARY    TO    CONSTRUCTION.  304 

might  require.1  Acting  under  its  general  powers  to  improve  streets,  a  city 
cannot  make  a  contract  by  which  the  contractor  is  to  receive  a  part  of  the 
stone  or  soil  of  the  streets  as  compensation  for  doing  the  work  of  grading. 
The  city  is  responsible  for  the  appropriation  of  the  soil  under  such  a  contract 
as  if  the  contractors  were  its  agents.2  The  city  or  public  authorities  may  not 
carry  the  excavation  of  the  bed  of  a  road  or  street  below  grade  for  the  purpose 
of  using  the  excavated  soil,  as  gravel,  on  the  surface  with  the  intention  of 
filling  up  the  pit  thus  made  with  less  valuable  earth.  Such  acts  are  in  viola- 
tion of  the  abutter's  rights,  for  which  he  may  maintain  an  action  against  the 
contractor. 3 

If  one  is  owner  of  the  fee  in  soil  over  which  is  a  right  of  way,  as  an  alley, 
he  may  erect  a  building  over,  or  an  underground  passage  beneath,  the  way,  if 
in  so  doing  he  does  not  interfere  with  the  rights  of  the  public.4 

If,  by  act  of  legislature  or  by  purchase  or  otherwise,  the  village  or  city  has 
title  in  fee  to  the  soil  of  its  streets,  then  it  may  make  whatever  use  of  the  soil 
it  will,  so  long  as  it  does  not  interfere  unreasonably  with  the  rights  of  the 
public* in  the  street  or  way.5 

A  city  cannot  grant  a  license  to  an  abutting  owner  to  use  part  of  a  street 
as  an  area  way  to  his  building,  or  as  a  ditch  to  carry  away  Drainage,  since  such 
use,  being  permanent,  is  inconsistent  with  the  due  use  of  the  street  by  the 
public.6 

443.  Ownership  of  Whole  Width  of  Street. — Cases  may  arise  where  a 
grantee  may  claim  the  whole  of  a  street.      If,  as  some  courts  hold,  the  rule  is 
founded    on   the   presumption    that   the    adjoining    owners   have    originally 
furnished  the  land  in  equal  proportions  for  the  sole  purpose  of  a  highway,  it 
may  yield  when  the  evidence  shows  that  this  was  not  the  case.     It  was  held 
that  if  a  grantor  divided  his  estate  into  house-lots  and    streets,   one  street 
being  laid  out  upon  the  margin  but  wholly  upon  the  grantor's  estate,  when 
the   street  was  located  the  entire  street   belonged   to  and    passed  with  the 
abutting  lots  under  a  general  description  in  a  deed  of  the  original  proprietor.7 

444.  Rights  of  Abutting  Owners   in  Other  Ways  than   Streets, — The 
same  rules  and  laws  are  applicable  to  public  waterways,  canals,  and  railways. 
In  the  absence  of  an  express  statute,  the  owner  retains  the  fee-simple  title  and 
the  exclusive  ownership  of  the  soil,  subject  only  to  the  proper,  reasonable, 
and  legitimate  use  of  the  land  for  the  purpose  of  an  aqueduct,  a  canal,  or 
railroad,  as  the  case  may  be.8     It  has  been  held  that  a  railway  company  could 

1  Rich  77.  City  of  Minneapolis,  37  Alb.  [1886]. 

Law  Jour.  58  [1887].  *See  Wait's   Engin.  &  Arch.  Jurisp.,  § 

3  Rich  v.  City  of  Minneapolis,  37  Alb.  266. 

Law  Jour.  58  [1887],  and  cases  cited.  And  6  Smith  v.   McDowell  (111.  Sup.),  35  N. 

see    Rochester    Sav.     Assn.     v.    Gorman  E.  Rep.  141;  Lewiston  v.  Booth  (Idaho), 

(Sup.),  47  N.  Y.  Supp.  81  [1897];  Roberts  34  Pac.  Rep.  809. 

v.  Sadler,  104  N.  Y.  229  [1887],  and  cases  7  In  re  Robbins,  34  Minn.  79. 

cited.  8Higgins    v.  Reynolds  et  at.,  31  N.  Y. 

3  Roberts  v.  Sadler,  supra.  151  [1865]. 

*Sutton   v.  Groll,    42    N.  J.     Law    213 


3O5  BOUNDARIES   ON  STREETS  AND    ROADS.  §  445. 

not  appropriate  the  grass  growing  upon  its  right  of  way. l  Under  the  right  of 
a  canal  company  to  cross  a  highway  the  company  does  not  take  the  fee  to  the 
highway,  but  simply  a  right  of  way.2  A  canal  company  owning  and  operating 
a  canal  through  a  stream,  as  a  river,  has  only  a  right  of  way  for  canal  pur- 
poses. When  the  canal  company  is  ousted  from  its  corporate  franchise,  all 
such  rights  revert  to  the  abutting  owners.3  It  is  liable,  however,  to  be  taxed 
though  it  does  not  own  the  subsoil  of  dams,  sluices,  etc.4 

Casting  an  additional  burden  upon  land  already  subject  to  an  easement, 
as  by  constructing  a  telegraph  line  along  the  right  of  way  of  a  railroad  com- 
pany, is  as  much  a  taking  for  a  public  use  as  was  the  taking  of  it  for  the 
original  easement,  and  courts  of  equity  have  jurisdiction  to  prevent  it  by 
injunction  until  compensation  is  paid  or  tendered;  but  where  a  telegraph 
line  is  constructed  in  good  faith  in  connection  with  a  railroad  company  over 
its  right  of  way,  and  for  its  use  and  benefit  in  the  operation  of  its  road,  and 
where  it  is  reasonably  necessary  for  that  purpose,  such  use  of  the  right  of  way 
is  within  the  scope  of  the  original  easement  of  the  company,  and  the  land- 
owners are  not  entitled  to  additional  compensation.5* 

445.  Boundary  Affected  by  Changes  in  Street  or  Way. — It  seems  that  a 
boundary  upon  a  street  does  not  change  or  shift  with  the  street,  like  that  upon 
a  stream,  but  is  confined  to  its  original  location.  A  lot  bounded  by  the  side- 
line or  margin  of  a  street  was  held  to  be  fixed  and  permanent  and  not  to  shift 
with  the  change  in  the  line  or  width  of  the  street.  When  a  street  was  sixty- 
three  feet  in  width,  but  was  contracted  by  twenty  feet  upon  one  side  of  the 
middle  line  by  the  common  council  upon  petition  of  the  landowners  fronting 
upon  the  street,  the  court  held  that  the  lines  of  the  grant  were  established  in 
reference  to  circumstances  as  they  then  existed,  and  could  not  be  changed  to 
conform  to  any  altered  condition  or  circumstance  without  evidence  that  such 
a  change  was  contemplated.6  Where  land  conveyed  is  bounded  upon  a 
street  the  fee  of  which  is  in  the  grantor  and  the  street  is  subsequently 
narrowed,  leaving  a  strip  between  the  grantee's  land  and  the  new  street 
boundary,  the  grantee  has  still  an  easement  and  a  right  of  way  over  said  strip 
to  the  street.7  Where  the  north  line  of  a  street  running  east  and  west  was 
widened  at  a  certain  point  and  narrowed  at  another,  it  in  no  way  changed  the 
south  line  of  the  street  as  shown  on  the  plat  under  which  it  was  located.8 

The  lines  of  a  street  as  laid  out  before  the  execution  of  a  deed  describing 

Bailey   v.    Sweeney   (N.    H.),  9   Atl.  (Md.),  18  Atl.  Rep.  910. 

Rep.  543  [1887].  «  White's  Bank  v.  Nichols,  64  N.  Y.  65 

2Lehigh    Valley    R.    Co.     v.     Orange  [1876].     See  also  O'Brien  v.  King  (N.  J.), 

Water  Co.,  42  N.  J.  Eq.  205  [1886].  7  Atl.  Rep.  33  [1887].     But  see  Prouty  v. 

3  Day  v.  Railroad  Co.  (Ohio),  22  Reptr.  Tilden,  164  111.  163. 

533  [1886].  7  White's  Bank  v.  Nichols,  64  N.  Y.  65. 

*Flax  Pond  W.  Co.  v.  Lynn  (Mass.),  16  8  City  of  Madison  v.  Mayers  (Wis.),  73 

N.  E.  Rep.  742  [1888].  N.  W.  Rep.  43  [1897]. 

5  American  Tel.  &  Tel.   Co.    v.    Smith 

*  See  Sees.  811-840,  infra. 


§44^.          OPERATIONS   PRELIMJNARY    TO    CONSTRUCTION.  306 

one  of  the  bounding-lines  of  the  property  thereby  conveyed  as  being  a  speci- 
fied number  of  feet  from  the  southerly  line  of  such  street  are  not,  for  the 
purpose  of  determining  the  location  of  such  lot,  changed  by  the  fact  that  the 
center  line  of  the  pavement  subsequently  laid  on  such  street  does  not  corre- 
spond with  its  center  line  as  laid  out  by  the  city.1  Building  restrictions 
imposed  upon  land  with  reference  to  the  street  refer  to  the  street  as  it  existed 
at  the  time  the  restrictions  were  imposed,  and  not  as  subsequently  altered  by 
public  authority.2 

Where  the  owners  of  land  convey  the  same,  bounding  it  by  the  line  of  a 
highway,  parol  evidence  is  admissible  to  show  whether  by  such  description 
the  parties  meant  the  surveyed  line  of  the  highway  or  the  line  as  actually  used 
and  occupied.3  A  conveyance  of  land  bounded  by  a  road  should  be  construed 
as  referring  to  the  actual  road  as  worked  and  used,  and  not  to, an  abstract 
legal  line,  invisible  and  practically  unknown.4 

When  an  act  of  the  legislature  directs  the  extension  of  a  city  to  a 
boundary  to  be  determined  by  extension  of  a  street,  the  street  must  be 
extended  in  its  orginal  direction.5 

446.  Presumption  of  Law  that  Abutting  Owners  Hold  Title  to  Street, 
— AH  American  and  English  courts  recognize  the  existence  of  a  rule  of  pre- 
sumption that  a  conveyance  of  land  bounded  on  a  highway  passes  to  the 
grantee  a  title  to  the  center  of  the  way.  The  difference  in  the  opinions  arises 
from  the  application  of  the  rule.  The  rule  is  founded  upon  a  policy  which 
tends  to  guard  against  inconveniences  of  the  most  alarming  character,  and  it 
ought  not  to  be  frittered  away  by  distinctions  founded  on  differences  in 
phraseology  which  might  readily  escape  attention.  Primarily  the  question 
hinges  upon  the  intention  of  the  parties,  which  is  paramount.  If  the  inten- 
tion be  disclosed  by  a  careful  consideration  of  the  conveyance,  it  will  prevail. 
The  intention  expressed  must  be  so  clear  as  to  overcome  and  refute  the  legal 
presumption  that  the  conveyance  was  to  include  one-half  of  the  highway. 

The  determination  of  the  boundary  depends,  therefore,  upon  the  reasonable 
construction  of  language  (that  may  or  may  not  show  the  real  intention  of  the 
parties)  on  the  one  hand,  and  upon  public  policy  on  the  other.  Chancellor 
Kent  treated  it  as  a  rule  of  public  policy  merely.6  Little  can  be  said  about 
the  construction  of  language,  but  it  is  submitted  (i)  that  the  ordinary  layman 
or  country  surveyor,  whose  deeds  and  descriptions  bring  up  these  questions, 
has  little  regard  for  technicalities  of  language  (2)  that  it  is  not  the  actual 
practice  of  surveyors  in  general  to  measure  to  the  center  of  a  street  or  stream 
in  making  a  survey,  but  to  confine  their  operations,  and  therefore  their 
descriptions,  to  the  land  inclosed,  exclusive  of  street  or  stream;  (3)  that  it  is 

1  Hastings  v.  McDonough  (App.  Div.),  *  Blackman   v.   Riley  (N.   Y.  App.),  34 

43  N.  Y.  Supp.  628.  N.  E.  Rep.  214. 

2Tobey  v.  Moore,  130  Mass.  448  [1881].  5  City  of  Monroe  v.  Police  Jury  (La.)f 

8  Wead  v.  St.  Johnsbury  &  L.  C.  R.  Co.  17  So.  Rep.  498. 

Vt.),  24  Atl.  Rep.  361.  63  Kent  433. 


307  BOUNDARIES   ON  STREETS  AND    ROADS.  §  446. 


an  acknowledged  popular  belief  that  the  public  are  owners  of  the  soil  of  a 
highway.  These  three  facts  should  make  the  language  of  a  description,  in 
such  circumstances,  extremely  uncertain;  and  it  would  seem,  if  there  are  good 
sound  reasons  of  public  policy  why  abutting  owners  should  own  to  the  center 
of  the  street  (or  stream)  that  these  reasons  should  prevail  unless  the  contrary 
intention  appear  in  clear  and  explicit  terms. 

The  chief  objects  of  holding  that  abutting  owners  shall  own  to  the  center 
of  the  street  or  stream  are  the  following:  (i)  To  prevent  the  existence  of 
innumerable  strips  and  gores  of  land  along  the  margin  of  streams  and  high- 
ways, the  title  to  which  may  remain  in  abeyance  for  generations,  after  which, 
upon  the  happening  of  some  unexpected  event  and  one  consequently  not  in 
express  terms  provided  for  in  the  title-deeds,  a  bootless,  almost  objectless 
litigation  may  spring  up  to  vex  and  harass  those  who  in  good  faith  supposed 
themselves  secure  from  such  embarrassment.1  (2)  The  abutting  owner  pays 
the  taxes  and  is  assessed  for  the  improvements  of  these  streets,  such  as  paving, 
curbing,  and  sewers,  and  it  were  an  injustice  that  another  should  reap  the 
benefit  of  such  expenditures.  (3)  The  abutting  owner  is  held  responsible  for 
the  condition  of  the  street,  such  as  the  clearing  the  walks  of  snow  and  of 
other  obstructions.  (4)  Ordinances,  statutes,  and  courts  universally  hold  the 
abutting  owner  responsible  for  all  burdens  and  improvements  to  his  half  of  the 
street,  which  is  a  good  and  sound  reason  why  he  should  be  given  proprietary 
interests  therein.2 

This  line  of  argument  was  employed  by  Chief  Justice  Lewis  of  the  Pennsyl- 
vania court,  who  maintained  that  the  general  understanding  of  the  people, 
the  extensive  and  immemorial  practice  of  claiming  and  acquiescing  in  such 
rights,  ought  to  have  great  weight,  if  there  were  no  other  reason  in  support  of 
this  rule.  A  contrary  rule  would  introduce  a  flood  of  unprofitable  litigation. 
The  rule  had  its  origin  in  regard  to  the  nature  of  the  grant.  Where  land  was. 
laid  out  in  town  lots  with  streets  and  alleys,  the  owner  received  a  full  consid- 
eration for  all  such  streets  and  alleys  in  the  increased  value  of  the  land.  The 
object  of  the  purchasers  of  the  lots  was  to  enjoy  the  usual  benefits  of  the 
streets,  that  houses  might  be  erected  fronting  on  the  same,  with  windows,  and 
doors  and  door-steps  for  passage  in  and  out,  and  for  the  proper  enjoyment 
thereof.  If  the  street  belong  to  another,  there  would  be  danger  of  suits  for 
trespass  for  each  and  every  act  of  the  abutting  owner  inconsistent  with  the 
rights  of  the  proprietor  of  the  street. 

Other  equally  practical  reasons  for  the  rule  exist.  Throughout  the  history 
of  property,  one  of  the  prime  objects  of  the  English  common  law  and  of 
English  and  American  legislation  has  been  to  make  secure  rights  in  real 
property,  to  render  them  absolute,  and  to  quiet  adverse  claims,  that  the  owner 

^  Red  field1  s  dissenting  opinion  in  Buck  v.  62;    Hamlin  v.   Pairpoint,   141    Mass.  51; 

Squires,  22  Vt.  484.  Kings  Co.  F.  I.  Co.  v.  Stevens,  87  N.  Y. 

2  Hughes  v.  Prov.  &  W.  R.  Co.,  2  R.  I.  287. 
508;  G.  R.  &  I.  R.  Co.  v.  Heisel,  38  Mich. 


§447-          OPERATIONS  PRELIMINARY    TO    CONSTRUCTION.  308 

might  enjoy  in  peaceful  security  the  comforts  of  a  landed  estate.  The  law  of 
prescription,  the  statutes  of  frauds  and  of  limitations,  have  all  had  this  common 
end  in  view,  and  it  would  be  strange  if  we  did  not  find  the  same  efforts  to 
establish  permanency  and  security  in  the  laws  of  boundaries.  To  effect  this 
same  object,  the  law  of  boundaries  is  so  established  as  to  avoid  such  old  and 
adverse  claims.  The  law  is  so  construed  as  to  avoid  miscellaneous  parcels, 
.gores,  and  pieces  the  ownership  of  which  is  not  likely  to  be  asserted  or  the 
land  itself  occupied. 

447.  Boundary  "  On,"  "  By,"  "  Along,"  "  Upon  "  a  Public  Way.— It  is  an 
established  inference  of  law  that  a  conveyance  of  land  bounded  on  a  highway 
or  river  carries  the  fee  to  the  center  of  the  highway  or  river,  provided  the 
grantor  at  the  time  owned  to  the  center  and  there  be  no  words  or  specific 
description  to  show  a  contrary  intent^  or  unless  it  clearly  appears  that  it  was 
intended  to  make  the  side-line  of  the  street  a  boundary,  instead  of  the  center.2 

When  a  street  is  called  for  it  is  regarded  as  a  single  line.  The  thread  of 
the  road  is  the  monument  of  abuttal.3  If  the  land  be  bounded  upon  a  street, 
river,  or  other  monument  having  width,  courts  incline  strongly  to  such  an 
interpretation  of  the  language  as  will  carry  the  fee  of  the  land  to  the  center 
line  of  such  monument,  rather  than  to  its  edge  only.4 

Generally  when  land  is  described  by  a  road  or  highway  as  a  boundary  the 
presumption  is  that  the  line  is  the  middle  of  the  way.  The  strength  of  this 
presumption  varies  in  different  states,  and  in  some  is  modified  by  the  terms  or 
language  employed.5 

Land  bounded  "  on  the  north  by  the  dugway  at  the  north  end  of  a  horse- 
shed,"  where  the  dugway  referred  to  was  thirty-one  feet  long  and  five  and  one- 
half  feet  wide  at  the  bottom,  and  apparently  been  cut  by  surface-water,  but 
had  for  many  years  been  used  as  a  footpath  and  occasionally  by  horses  and 
wagons,  it  was  held  that  the  dugway  was  a  lane  or  alley,  and  that  the  deed 
conveyed  title  to  the  middle  thereof.6  The  tendency  of  the  courts  of  the 
Southern  and  Western  states  seems  to  be  toward  the  New  York  and  Massa- 
chusetts rule  of  construction. 

In  New  Jersey  the  grantee  was  held  to  own  to  the  center  of  an  avenue 
dedicated  to  the  public,  where  the  plat  designated  thirty-three  feet  of  the 
center  of  the  one  hundred  feet  in  width  for  railroad  purposes.7  And  in 

1  People  v.  Bd.  of  Supervisors,  125  111.       71  Fed.  Rep.  626. 

9  [1888];   Morrow  v.  Willard,  30  Vt.   118  5  In    Massachusetts    the    rule    is    well 

[1857];     Warren    v.     Thomaston    (Me.),  settled.    Smith  v.  Slocum  (Mass.),  9  Gray 

[1883];    Salter   v.   Jonas,   10  Vroom  469;  36;  Peck  v.  Denniston,  121  Mass.  17;  White 

Paul  v.  Carver,  26  Pa.  St.  223;  Columbus  v.  Godfrey,  97  Mass.  472;  Dean  v.  Lowell, 

&  W.  Ry.  v.  Witherow  (Ala.),  3  So.  Rep.  135   Mass.    55;    Chadwick    v.    Davis,    143 

23  [1888].  Mass.  7;  O'Connell  v.  Bryant,  121  Mass. 

2  Moody  v.    Palmer,   50  Cal.  31  [1875];  557;  Morgan  v.  Moore,  3  Gray  319;  Sibley 
Johnson  v.  Anderson,  18  Me.  76;  Paul  v.  v.  Holden  (Mass.),  10  Pick.  249. 
Carver,  26  Pa.  223;  Newhall  v.   Ireson,  6  Pitney    v.   Heusted   (Sup.),   40   N.  Y. 
8  Cush.  598;  Buck  v.  Squires,  22  Vt.  493.  Supp.  407. 

3  Newhall  v.  Ireson,  8  Cush.  595.  7  Penna.  R.  Co.  v.  Ayres  (N.  J.),  14  Atl. 
*  Paine  v.  Consumers    Co.  (C.  C.  A.),       Rep    901  [i< 


309  BOUNDARIES   ON  STREETS  AND   ROADS.  §  449. 

Pennsylvania  a  grantee  in  a  deed  naming  a  specified  street  as  an  adjoinder  on 
one  side  takes  the  conveyance  subject  to.  a  right  of  way  on  the  so-called  street 
previously  granted  by  his  grantor  and  subject  to  a  prior  appropriation  of  a 
specified  width  of  such  street  for  the  building  of  a  lateral  railroad.1 

448,  Middle  Line  of  Street  the  Boundary. — The  conveyance  goes  to  the 
center  of  way2  if  described  as  on,  along,  or  by  said  street,  or  by  said  road,z  or 
lying  on  a  street  f  or  along  the  street*  and  when  city  lots  abutting  on  a  street 
are  conveyed  by  numbers.6     The  same  rule  holds  when  land  has  been  granted 
by  the  state  and  the  description  calls  for  a  public  road  as  a  boundary.7 

449.  Rule  is  Well  Established  in  Some  States  that  Center  Line  of  Street 
is  Boundary. — In  Pennsylvania  the  law  is  distinctly  settled  that  where  a  street 
or  a  non-navigable  stream  is  called  for  in  a  deed  as  a  boundary  or  monument, 
the  fee  passes  to  the  center  of  it  in  the  absence  of  an  express  exception  in 
the  grant,  or  some  clear  and  unequivocal   declaration,  or  some  certain  and 
immemorial  usage  to  limit  the  title  of  the  grantee  in  such  cases  to  the  edge 
or  side.     Ordinary  every-day  language  of  a  deed  will  not  be  construed  so  as 
to  alter  the  rule,  thus  producing  a  result  so  inconvenient  and  contrary  to  the 
practice  of  the  people. 

In  some  states  this  presumption  is  so  strong  that  only  the  most  clear  and 
explicit  terms  will  avail  to  prevent  the  adjoining  owner  from  acquiring  title  to 
the  middle  of  the  way.  In  Connecticut  it  was  held  that  if  the  land  conveyed 
bounded  on  a  highway  it  made  no  difference  in  the  legal  construction  of  the 
conveyance  whether  the  words  upon,  by,  or  along  the  highway  were  used  or 
not;  the  effect  is  the  same  to  pass  title  to  the  middle  of  the  way.8 

A  call  for  a  particular  side  of  a  street,  and  a  measurement  of  a  distance  set 
forth  in  a  conveyance,9  which  brings  the  line  only  to  the  side  of  the  street,10  or 
if  both  together  are  set  forth,11  or  if  the  deed  says  nothing  about  a  highway, 
and  the  south  line  of  the  land  does  not  correspond  with  the  north  line  of  the 
highway  as  originally  laid  out,12  or  if  the  land  be  described  as  "  beginning 
on  the  westerly  side  of  a  road,  thence  northerly,  touching  the  said  westerly 

Galley  v.  Pennsylvania  R.  Co. ,177  Pa.  (Sup.),  30  N.  Y.  Supp.  1014. 

117,  35  All.  Rep.  638.  5  Hammond  v.  McLachlan,  i  Sandf.  (N. 

2  White  v.  Godfrey,  97  Mass.  472;  Cottle  Y.)  323;  Hennig  v.  Fisher,   I  Sandf.  (N. 
v.  Young,  59  Me.  105;  Low  v.  Tibbetts,  72  Y.),  344. 

Me.  92;  Peck  v.  Denniston,  121  Mass.  17;  6  McCruden  v.  Rochester  Ry.  Co.  (Cir. 

Dean  v.  Lowell,  135  Mass.  55.  Ct.),  25  N.  Y.  Supp.  114. 

3  Edsall  v.  Howell  (Sup.),  33  N.  Y.  Supp.  7  Cosgrove  v.  Kingston  C.  Co.  (Pa.),  40 
892;  Re  Cathedral    Parkway   (N.   Y.),  20  All.    Rep.    151    [1898];    Cheney    v.    New 
App.  Div.  404,  46  N.  Y.  Supp.  832;  Gor-  York,  etc.,  R.   Co.  (App.  Div.),  40  N.  Y. 
ham  v.  Eastchester  El.  Co.  (Sup.),  30  N.  Supp.  1103. 

Y.  Supp.  125;  Dean  v.  Lowell,  135  Mass.  8  Champlin  v.  Pendleton,  13  Conn.  23; 

55    [1883];     Firmstone    v.     Sparter    (Pa.  Hennessy   v.   Murdock   (N.  Y.   App.),  33 

Sup.),  25  Atl.  Rep.  41;  Carpenter  v.  Buck-  N.   E.   Rep.  330;   Mangam  v.   Sing  Sing, 

man  (Ky.),  41   S.  W.  Rep.  579;  Foreman  n  App.  Div.  212,  42  N.  Y.  Supp.  950. 

v.  Presbyterian  Ass'n  (Md.),  30  Atl.  Rep.  9  Paul  v.  Carver,  26  Pa.  St.  223. 

1114.     And  see  Church  v.  Stiles  (Vt.),  10  10  Newhall    v.   Iveson  (Mass.),   8  Cush. 

Atl.   Rep.    674  [1887];    Mott  v.    Mott,  68  595. 

N.  Y.  246  [1877],  and  cases  cited.  u  Cox  v.  Friedley,  33  Pa.  St.  124. 

*  Tinker  v.    Metropolitan    El.    R.    Co.  12  Champlin    z/.Pendleton,  13  Conn.  23. 


§449'  OPERATIONS  PRELIMINARY    TO    CONSTRUCTION.  3IO 

side  of  said  road,  "l  such  calls  will  be  insufficient  to  control  (change)  the 
rule  of  law  which  extends  the  title  of  abutting  owners  to  the  center  of  the 
road,  in  the  respective  states  where  cases  are  cited.2 

In  Pennsylvania,  however,  when  the  deed  named  "  the  side  of  a  street" 
and  gave  the  distances  to  minute  fractional  parts,  and  there  were  stakes  or 
monuments  standing  or  placed  upon  the  side  at  distances  corresponding  to 
those  given  in  the  description,  it  was  held  that  these  did  not  show  paramount 
intention  of  the  parties  sufficient  to  reserve  the  highway.3  The  court  remarked 
that  monuments  could  not  be  in  the  street  any  more  than  marked  trees  or 
stakes  could  have  stood  in  the  middle  of  a  stream.  They  would  naturally 
be. found  upon  the  margin,  and  it  is  the  universal  custom  to  so  place  them.4 

The  fact  that  the  description  in  the  deed,  after  stating  the  number  of  the 
lot,  gives  its  dimensions,  exclusive  of  the  highways,  does  not  affect  such  con- 
struction.5 

The  owner  of  land  on  a  highway  in  the  country  is  presumed  to  own  the 
fee  to  the  middle  of  the  highway.  A  description  "  beginning  at  the  corner  " 
of  a  neighbor's  land  on  the  north  side  of  a  highway,  thence  running  "  along  " 
the  highway,  thence,  after  several  courses,  to  the  place  of  beginning, 
conveys  the  fee  to  the  middle  of  the  highway.6  The  same  doctrine  is  main- 
tained in  Colorado,  where  the  words  to  a  street  or  to  the  side  of  the  street  and 
along  the  street,  carry  the  grantee  to  the  middle;  and  the  same  holds  if  the 
description  calls  for  the  corner  of  two  intersecting  streets  as  the  starting-point.7 

Where  general  terms  of  description  are  used  in  a  deed,  like  "to," 
"  upon,"  or  "  along"  a  highway  or  railroad,  and  where  there  is  a  conflict 
between  courses  and  distances  on  the  one  hand  and  monuments  mentioned 
in  the  deed  on  the  other,  the  description  by  monuments  must  control.8 

If  a  grantee  takes  title  to  the  center  of  a  street  bounding  his  conveyance, 
the  question  arises  whether  as  a  purchaser  by  the  square  foot  he  must  pay  for 
the  land  included  in  the  highway.  It  has  been  held,  in  the  absence  of  any 
special  agreement  to  that  effect,  that  he  need  not  in  the  city  of  Washington, 
D.  C.9* 

1  Johnson  v.  Anderson,  18  Me.  76.  Shaubacher,    57    Mo.    582    [1874].        See 

2  Accord,  Woodman  v.   Spenser,   54  N.       Wead  v.  St.  Johnsbury   Co.  (Vt.),  24  All. 
H.  507;  Kneeland  v.  Van  Valkenburg,  46       Rep.  361. 

Wis.  434.  6Holloway  v.  Delano  (Sup.),   18  N.  Y. 

3  Cox  v.  Friedley,  33  Pa.  124;  Oxton  v.  Supp.  700,  reversing  16  N.  Y.  Supp.  543. 
Graves,  68  Me.  371.  7  Moody    v.    Palmer,  50  Cal.  31   [1875]. 

4  See  also  Salter  v.  Jones,  39  N.  J.  Law  But   see,  contra,  Alameda  Macadamizing 
469.  Co.  v.  Williams  (Cal.),  12  Pac.   Rep.   530 

5  Brown  v.  City  of  Baraboo  (Wis.),  74  N.  [1887]. 

W.  Rep.  223  [1898];  /V  Cathedral  Park-  8  Church    v.   Stiles    (Vt.),   10  All.   Rep. 

way  (N.  Y.),  20  App.  Div.  404;  Grant  v.  647  [1887]. 

Moon    (Mo.   Sup.),    30   S.    W.    Rep.    328;  9  Brent    v.   Smith,  5    Cranch  C.   C.  672 

Moody    v.    Palmer,    50    Cal.    31     [1875];  [1840].     See   Wharf    Co.   v.   Portland,  46- 

Boland  v.  St.  John's    School  (Mass.),  39  Me.  42  [1858]. 

N.  W.  Rep.  1035;  Hannibal  Mtge.  Co.  v. 

*  See  Sec.  411,  supra. 


311  BOUNDARIES   ON  STREETS  AND   ROADS.  §45^ 

450.  The   Intention   of  the   Parties   must   Prevail. — In   all    cases   the 
boundary  depends  upon  the  construction  of  the  language  used  by  the  parties 
and  upon   such   surrounding  circumstances  as  are  proper  to  be  taken  into 
account  to  ascertain  the  intention  of  the  parties,  keeping  always  .in  view  the 
legal  presumption  that  the  parties  intended  to  include  the  highway,  and  that 
the  burden  is  upon  the  party  who  assumes  to  show  that  the  parties  intended 
to  the  contrary. 

The  rule  that  the  middle  of  the  way  is  presumed  to  be  the  boundary  is  not 
absolute,  irrespective  of  manifest  intention.  Other  facts  and  considerations 
indicating  a  different  intention  may  be  considered,  such  as  the  giving  of 
measurements  which  exclude  the  way,  a  statement  that  the  parcel  described 
is  a  part  of  a  larger  tract,  which  does  not  include  any  part  of  it,  or  the  fact 
that  the  parties  acted  on  a  different  construction. l  The  presumption  may  be 
rebutted.2 

In  New  York  the  presumption  is  not  so  strong  and  the  decisions  do  not 
go  to  the  extent  of  those  of  Pennsylvania  and  Connecticut,  but  limit  the  title- 
to  the  manifest  intention  of  the  deed,  as  can  be  gathered  from  the  terms 
employed,  and  from  the  circumstances  and  conditions  of  the  lands  and 
parties. 3 

451.  Intention  Expressed  by  Different   Phrases  and  Clauses — Side  or 
Line  of  Street. — A  description  which  stated  that  a  boundary  commences  at 
the  intersection  of  the  side-lines  of  two  streets,  and  thence  by  several  courses- 
along  the  side-lines  of  the  same  streets  to  the  place  of  beginning,  was  held 
necessarily  to  exclude  the  street.4 

A  description  of  land  as  bounded  by  a  .line  running  "  on  the  easterly  side 
of  a  highway"  certainly  does  not  import  "  the  center  line  of  the  highway" 
so  that  the  easterly  side  was  construed  to  mean  the  eastern  edge  or  line  of  the 
highway.  This  construction  is  in  keeping  with  that  adopted  in  Massachusetts, 
New  Hampshire,  Vermont,  and  New  York.  In  Vermont  this  rule  was 
adopted  after  a  thorough  review  of  the  authorities;  and,  like  the  case  which 
decided  the  law  in  New  York  that  land  bounded  by  a  sh,ore  excluded  the 
water,  it  was  not  decided  without  strong  dissenting  opinion.5 

When  the  boundaries  of  a  field  start  at  the  side  of  the  road  and  come  back 
to  the  road,  and  thence  on  the  line  of  the  road  to  the  beginning,  the  conclu- 
sion is  that  the  road  is  excluded.6  The  designation  in  a  deed  of  the  place  of 

Crocker   v.  Getting  (Mass.),  44  N.   E.  (Mass.),  10  Pick  249.     Accord,  English  v. 

Rep.   214.  Brennan,  60  N.  Y.  609;     White's  Bank  v. 

2  Re   Rochester   (App.  Div.),  40  N.   Y.  Nichols,  64  N.    Y.   65;   People   v.    Bd.   of 
Supp.  1007.  Supervisors,    125  111.   9   [1888].     And  see 

3  Mott  v.  Mott,  68  N.  Y.  246  [1877].  Foley  v.  McCarthy  (Mass.),  32  N.  E.  Rep. 

4  English    v.    Brennan,    60   N.   Y.  609;  669;  Hobson  v.  Philadelphia  (Pa.),  24  Atl. 
White's  Bank  v.  Nichols,  64  N.  Y.  65.  Rep.  1048;  Mott  v.  Clayton  (N.  Y.),  9  App. 

5  Buck  v.  Squires,  22  Vt.  484,  and  cases  Div.  181;  Blackman  v.  Riley  (N.  Y.  App.), 
cited.  34  N.  E.   Rep.  214;  Holloway  v.   Delano 

6  Chief  Justice  Shaw  in  Smith  v.  Slo-  (N.  Y.  App.),  34  N.  E.  Rep.   1052;  Hunt 
cum  (Mass.),  9  Gray  36;  Sibley  v.  Balden*  v.  Brown   (Md.),  23  Atl.  Rep.  1029;   Pea- 


§  452-          OPERATIONS  PRELIMINARY    TO    CONSTRUCTION.  $12 

beginning  as  "on  the  north  side  of  W.  street,  beginning,  for  outbounds,  east 
1 60  feet  from  L.  street,  extended  to  the  east  corner  of  lot  ...  owned  by  B., 
and  running  with  W.  street,"  is  unambiguous  and  cannot  be  varied  or 
explained  by  testimony  as  to  understanding  of  the  parties.1  If  premises  are 
bounded  by  the  line  of  the  street,  the  title  extends  only  to  that  line.2  When 
the  description  was,  "  beginning  at  a  monument  on  the  south  side  of  the  road, 
thence  by  various  courses  to  said  road,  thence  by  said  road  to  the  place  of 
beginning,"  it  was  construed  to  limit  the  boundary  to  the  south  side  of  the 
road.  "  To  the  road  "  would  ordinarily  mean  to*  the  middle  of  the  road,  and 
if  the  line  were  run  from  this  middle  point  to  the  place  of  beginning,  it  would 
neither  be  by  the  side  of  the  road  nor  in  the  middle,  but  by  a  diagonal  line 
from  a  point  in  the  center  to  a  point  in  the  side;  and  this  would  be  incon- 
sistent with  any  supposed  intent  of  the  parties.3 

A  description  of  a  lot  on  the  east  side  of  a  public  highway  as  "  beginning 
at  the  northwest  corner  of  lot  No.  4  opposite  the  southeast  corner  of  lot 
No.  i  on  the  east  side  of  a  highway,  running  thence  .  .  .  along  the  road," 
was  held  to  carry  the  title  to  the  center  of  the  road,  especially  when  the 
grantor  in  the  same  deed  has  conveyed  lot  No.  i  on  the  west  side  of  the 
western  half  of  the  road.4 

The  words  "to  and  along  the  road,"  if  not  controlled  by  the  starting- 
point,  would,  by  well-settled  construction,  carry  the  boundary  to  the  center,  but 
these  words  are  also  consistent  with  confining  the  boundary  to  the  side  of  the 
road.  The  words  "  beginning  at  the  side  of  a  road  "  would  not  be  consistent 
with  a  line  through  the  middle  of  the  road.5 

452,  Intersection  of  Streets  or  Roads. — A  deed  by  metes  and  bounds, 
beginning  at  "a  post  planted"  at  intersection  of  W.  and  S.  streets,  thence 
northwesterly  500  feet,  etc.,  thence  to  a  "post  planted  on  the  line  of  W. 
street,"  conveys  no  part  of  the  street.6 

When  a  deed  described  premises  as  "  beginning  at  the  intersection  of  the 
exterior  lines  of  two  streets,"  the  point  thus  established  was  held  to  control 
the  other  parts  of  the  description.  Lines  running  along  the  streets  are  held 
confined  to  the  exterior  lines  of  the  streets,  and  the  soil  of  the  street  is  not 
included  in  the  grant.7  It  seems  that  the  corner  of  two  intersecting  streets 
may  be  in  the  middle  of  such  streets.8 

body   Hts.   Co.   z/.   Sadder,   63  Md.    533.  *  fie   Cathedral    Parkway   (N.    Y.),    20 

But  see  Holloway  v.  Southmayd  (Sup.),  App.  Div.  404. 

18  N.  Y.  Supp.  707.  5  Kings    Co.   Fire  Ins.  Co.  v.  Stevens, 

1  Neal  v.  Hopkins  (Md.),  39  Atl.  Rep.  87  N.  Y.    287;  Blackman  v.   Riley  (N.  Y. 
322  [1898].  App.),  34  N.  E.  Rep.  214. 

2  Wharf  Compy.  v.  Portland,  46  Me.  42  6  Neal  v.  Hopkins  (Md.),  39   Atl.   Rep. 
[1858].  322. 

8  Sibley  v.  Holden  (Mass.),  10  Pick.  249.  7  White's  Bank  v.  Nichols,  64  N.  Y.  65 

See  also  Low  v.  Tibbetts,  72  Me.  92;  Peck  [1876]. 

v.  Denniston,  121  Mass.  17;  Peabody  Hts.  8  Holloway  v.  Delano  (Sup.),  18  N.  Y. 

Co.   v.   Sadtler,  63  Md.    533;    Rieman    v.  Supp.  700;  Holloway  v.  Southmayd  (Sup. 

Baltimore,  etc.,  Co.  (Md.),  31  Atl.   Rep.  Ct.),  18  N.  Y.  Supp.  707. 
444. 


313  BOUNDARIES   ON  STREETS  AND    ROADS.  §454 

453.  Boundaries  on   Private   or   Unaccepted   Streets, — The  rules   laid 
down,  however,  have  been  held  not  to  apply  to  intended  streets,  nor  to  land 
intended  to  be  dedicated  as  a  highway,  but  only  to  existing  or  established 
roads.      This  rule  seems  to  be  applied  in  England,1  and  in  Maine  to  parks;2 
and  where  an  estate  has  been  mapped  and  house-lots  and  streets  designated 
upon  the  map,  and  the  land  was  bounded  "  southerly  on  Center  Street,  there 
measuring  120  feet,"  referring  to  a  map,  Center  Street  having  been  prepared 
and  used  as  a  street  or  way. 3     The  same  law  is  applied  in  New  York  and 
Massachusetts  to  private  streets.4     In  some  cases  private  streets  are  held  to 
belong  to  abutting  owners.5     Private  streets  do  not  belong  to  abutting  owners 
in  Maryland.6     If  plat  is  made  and  recorded,  they  do  in  Illinois.7 

454.  Boundaries  on  Ways  when  Land  is  Described  by  Reference  to  a 
Plat. — If  land  upon  a  highway  is  conveyed  by  a  plan  on  which  the  tract  is 
colored,  excepting  the  way,  and  its  dimensions  ascertained  by  measurement, 
the  presumption  of  law  is  that  the  soil  of  the  highway  to  the  center  of  the 
way  passes  unless  there  is  evidence  upon  the  face  of  the  conveyance  to  show 
that  a  moiety  of  the  highway  was  not  intended  to  pass.8     The  presumption  is 
universal,  in  the  absence  of  express  evidence,  that  the  adjoining  owners  have 
contributed  to  the  formation  of  the  road,  and  have  dedicated  it  for  the  public 
benefit;  it  is  reasonable,  therefore,  that  when  a  man  has  granted  all  his  land 
or  all  his  fields,  he  should  be  held  also  to  have  granted  the  soil  of  such  roads 
as  may  form  the  boundary  of  his  property  up  to  the  middle  line  thereof.9     A 
reference  to  a  plan  annexed,  the  measuring  and  coloring  of  which  would  exclude 
the  street,  or  a  description  by  lines  and  measurements  which  would  only  bring 
the  premises  to  the  exterior  line  of  the  highway,  will  not  exclude  it  nor  rebut 
the  presumption.10    It  seems,  therefore,  that  the  intention  of  such  a  dedication 
will  not  be  presumed,  but  must  be  expressed  or  shown  by  some  evidence,  as  a 
plan  or  some  act  of  the  dedicator.      Such  cases  present  a  very  strong  plea  for 
care  in  surveying  and  laying  out  land,    when  the  placing  of  a  word  upon  a 
map   may  forfeit   a  man's   title   to  his  property.      It   illustrates  the  evils   of 
garnishing  maps,  and  planning  public  features,    without  authority  from  the 
proprietor.      A  map  of  an  estate  or  town-site  should  be  carefully  reviewed  and 
explained  by  a  competent  authority  before  it  is  published  and  distributed  by 

1  Leigh  v.  Jack,  3  Ex.  Div.  264.  6  B.  &  O.  R.  Co.  v.  Gould  (Md.),  8  Atl. 

2  Bangor  House  v.  Brown,  33  Me.  309.       Rep.  754  [1887]. 

3  Accord,  The  U.  B.  Ground    v.  Robin-  7  (111.)  15  N.  E.  Rep.  854  [1888]. 

son,  5  Wharton  18.  8  Berridges    v.  Ward  (Eng.),  10   C.    B. 

iSemble,  Bissell   v.  N.  Y.  Cent.  R.  Co.,  (N.  S.)  400   [1861];    Re  Cathedral    Park- 

23  N.  Y.  61;  Fisher  v.  Smith,  9  Gray  441;  way   (N.    Y.),    20    App.    Div.    404.     See 

Stark  v.  Coffin,  105  Mass.  328;  Motley  v.  also    Sutherland  v.   Jackson,  32  Me.   80; 

Sargent,  119  Mass.  231;  Goulds.  Eastern  Gould  v.  Eastern    R.  Co.,    142  Mass.  85; 

R.    Co.,   142    Mass.  85.     But  see  Mott  v.  Hansom  v.  Campbell,   20  Md.  223;    Bos- 

Mott,  68  N.  Y.  246.  ton  v.  Richardson,  13  Allen  146. 

6  Philadelphia  v.   Scott,   8l    Pa.  St.  85.  9  Leigh  v.  Jack  (Eng.),  3  Ex.  Div.  264. 

But  compare  English  v.  Brennan,  60    N.  ™  Semblr,    Hennessy   v.   Murdock    (N. 

Y.  609.  Y.  App.),  33  N.  E.  Rep.  330. 


§455-          OPERATIONS  PRELIMINARY    TO    CONSTRUCTION.  314 

the  proprietor,  for  it  involves  the  consideration  of  many  nice  questions  of  law 
and  engineering.* 

455.  Reservation  of  Narrow  Strip  of  Land  as  Boundary  of  a  Village. — 
In  laying  out  an  estate  for  a  town  it  is  sometimes  the  practice  to  reserve  to 
the  original  owner,  or  to  the  promoters,  the  exclusive  ownership  and  control  of 
a  narrow  strip  of  land  (say  two  feet  in  width)  circumscribing  and  surrounding 
the  entire  village-site.      This  is  done  to  prevent  outlying  landowners  from 
opening  streets  and  avenues  and  dividing  up  their  lands  into  lots,  the  sale  of 
which  would  cheapen  those  in  the  village  laid  out.     With  such  a  strip  sur- 
rounding the  village,  any  attempt  to  enter  the  village  from  without  will  be  a 
trespass,  and  any  attempt  to  connect  with  the  streets,  avenues,  gas-,  water-, 
or  steam-pipes,  or  to  profit  by  the  improvements  afforded  by  the  village,  is 
effectually  blocked.     The  promoters  of  the  village  may  build  a  wall  across 
any  way  opened,  or  about  the  entire  village-site,    or  they  may  prevent  any 
outsiders  from   entering  an   action   of  trespass.     The  width  of  the  strip  is 
immaterial  so  far  as  the  rights  of  the  parties  are  defined. 

The  one-vigintillionth  part  off  the  front  end  of  a  lot  may  be  so  minute  as 
to  be  unappredable  by  the  physical  senses,  yet  nevertheless  the  mind  recog- 
nizes it  as  a  real  entity ;  and  a  title  obtained  to  it  by  a  deed  under  a  tax  sale 
would  cut  the  owner  off  from  access  to  the  street,  and  render  him  guilty  of  a 
technical  trespass  whenever  he  passed  over  it.1  Yet  the  courts  of  the  same 
state  have  held  that  a  deed  which  describes  so  infinitesimal  a  portion  of  land 
that  it  cannot  be  identified  is  void.2 

The  New  York  courts  have  held  that  an  encroachment  of  one-fourth  of  an 
inch  upon  an  adjacent  lot  did  not  warrant  a  denial  to  the  vendor  of  a  specific 
performance  of  a  contract  to  purchase  by  the  vendee.3 

A  strip  two  feet  wide  along  the  side  of  lots  next  to  the  street,  which  the 
plat  provides  is  reserved  for  location  of  fence,  to  be  perpetually  held  as  private 
property  of  the  owners  of  the  several  lots  in  the  plat  collectively,  cannot  be 
separately  sold  for  street  assessment,  but  the  owner  of  each  lot  owns  the  fee  of 
it,  subject  to  an  easement  in  favor  of  the  other  lot-owners,  as  he  owns  the  fee 
to  the  middle  of  the  street,  subject  to  the  easement  of  the  public.4 

456.  Reverting  of  Abandoned  Streets  to  Abutting  Owners. — When  land 
is  sold  described  as  extending  "to  the  center  of  the  street"  and  the  street  is 
subsequently  abandoned  and  damages  paid  to  the  grantee  to  compensate  him 
for  closing  the  street,  he  may  not  lay  claim  to  any  land  of  the  street  further 
than  to  the  center.     The  land  of  the  street  opposite  to  him  will  revert  to  the 
original  grantor.5 

1  Connecticut    Mut.    Life    Ins.     Co.    v.  4Town  of  Woodruff  Place   v.  Raschig- 
Stinson,  62  111.  App.  319.  (Ind.  Sup.),  46  N.  E.  Rep.  990. 

2  Gloss  v.  Furman,   164  111.    585,  45  N.  5  Baltimore   &    Ohio  R.    Co.   v.   Gould 
E.  Rep.  1019,  affirming  66  111.  App.  127.  (Md.),  8  Atl.  Rep.  754  [1887]. 

8  Katz  v.  Kaiser,  10  App.  Div.  137. 

*  See  Sees.  701-710,  infra. 


315  BOUNDARIES   ON  STREETS  AND   ROADS.  §  4$6. 

By  statute  in  Michigan  it  is  provided  that  when  a  street  or  alley  is  vacated 
the  same  shall  be  attached  to  the  lots  bordering  thereon,  and  the  title  thereto 
.shall  vest  in  the  person  owning  the  property  on  each  side  to  the  center  of  such 
a  street  or  alley.  Under  this  law,  in  a  case  where  an  alley  had'been  dedicated 
to  the  public  by  a  plat  reserving  to  the  dedicator,  his  heirs  or  assigns  the 
reversionary  interest,  it  was  held  that  the  fee  belonged  to  the  abutting  owners. 1 

^cudder  v.  Detroit  (Mich.),  75  N.  W.  Rep.  286  [1898]. 


CHAPTER  XXVI. 
BOUNDARIES   DETERMINED   BY   ARBITRATION. 

461.  Arbitration  a  Popular  Means  of  Settling  Boundary  Disputes, — In 

the  treatment  of  the  subject  of  arbitration  it  is  intended  to  give  only  so  much 
of  the  law  as  will  enable  a  surveyor  to  intelligently  advise  his  patron  as  to  his 
boundaries  when  called  upon  to  determine  them,  and  to  enable  him  to  establish 
them  as  they  should  be  located,  in  view  of  all  the  facts  and  circumstances. 

Arbitration  is  the  most  frequent  and  satisfactory  method  of  deciding  the 
location  of  disputed  boundary-lines.  The  fee's  and  services  of  lawyers,  the  fees 
of  clerks,  issuing  of  writs,  the  thousand  and  one  delays,  vexations,  and 
annoyances  of  court  machinery,  are  avoided  and  the  question  quickly  and 
intelligently  decided.  A  determination  of  the  boundary-line  of  an  estate  by 
one  intelligent,  disinterested,  and  conscientious  surveyor,  or  by  three  such  sur- 
veyors, is  much  more  likely  to  be  true  and  equitable  than  a  determination  by 
twelve  jurymen  of  average  intelligence,  who  know  little  more  about  a  problem 
of  surveying,  and  about  surveyors'  methods  in  such  a  problem,  than  they  do 
about  a  case  of  leprosy  or  its  treatment  by  the  medical  profession.  Intelligent 
landowners  might  as  well  call  on  a  jury  to  attend  them  and  prescribe  for  them 
when  they  have  a  fever  as  to  call  on  them  to  solve  a  difficult  problem  in  engin- 
eering, and  they  would  get  equally  as  good  treatment  in  one  case  as  in  the 
other.  If  a  man  knows  he  is  in  the  wrong  and  that  he  is  not  justly  entitled 
to  what  he  claims,  then  one  of  the  best  evidences  of  it,  to  a  surveyor,  is  his 
eagerness  to  take  his  claim  into  a  court  of  law.  He  may  have  a  hopeless  case, 
if  in  the  hands  of  an  intelligent  surveyor,  and  yet  -recover  through  an  igno- 
rant jury. 

What  has  been  said  applies  generally  to  the  arbitration  of  most  ques- 
tions in  engineering,  and  the  reader  is  referred  to  Wait's  Engineering  and 
Architectural  Jurisprudence  in  regard  to  the  subject.1 

462,  Submission  of  Disputes  in  Regard  to  Real  Estate, — There  is  a  pop- 
ular notion  that   matters  with   regard  to  real  estate  cannot  be  submitted  to 
arbitration,  but  this  is  not  so,  and  there  seems  to  be  no  good  reason  why  such 

1  Wait's    Engin.     and     Arch.    Jurisp.,       ors;   Johnson's  Theory  and   Practice   of 
Chapter    XIX,     §§       519-533-     And    see       Surveying,  Appendix  A. 
Cooley's  Judicial  Functions    of  Survey- 

316 


$17  BOUNDARIES   DETERMINED    BY  ARBITRATION.  §464. 

disputes  may  not  be  arbitrated.  If  the  award  affects  the  title  to  the  land  or 
real  estate,  then  the  submission  must  be  under  seal  on  the  principle  that  the 
authority  to  do  an  act  should  be  of  as  high  an  order  as  the  act  itself.1  The 
award,  although  conclusive  between  the  parties,  cannot  pass  title.  It 
merely  prevents  the  losing  party  from  denying  the  superiority  of  the  title  of 
the  other  party.  If  arbitrators  wish  that  the  property  be  conveyed,  they  should 
specially  order  the  parties  to  execute  and  deliver  a  deed  of  conveyance.  An 
award  fixing  the  boundary-line  will  be  a  good  defense  to  an  action  of  trespass, 
and  it  will  support  an  action  of  ejectment.2  An  award  that  the  dividing- 
line  shall  be  five  feet  from  the  fence  and  shall  cut  off  A's  land  to  be  added  to 
B's  land,  the  expression  simply  describing  the  land  as  established  and  not 
showing  an  unwarranted  taking  of  land,  is  not  in  excess  of  a  general  authority 
to  establish  the  true  boundary-line  between  the  litigants.3 

When  a  statute  provides  that  a  controversy  concerning  the  boundaries  of 
land,  but  not  the  claim  of  any  person  to  the  estate  in  fee,  may  be  submitted  to 
arbitration,  a  dispute  as  to  the  ownership  of  a  strip  of  land  which  is  claimed 
by  the  adjoining  owner,  and  which  is  expressly  conveyed  to  him  in  fee  by  his 
deed,  cannot  be  determined  by  arbitration.4 

463.  Effect  of  a  Submission  to  Arbitration. — The  submission  amounts 
simply  to  an  agreement  to  await  the  award.     In  a  bond  conditioned  "  to 
abide  by  and  perform  an  award"  the  words  "abide  by"  do  not  mean  to 
acquiesce  in,  but  simply  to  await  the  award  without  revoking  the  submission. 
It  has  been  held,  therefore,  that  entering  on  disputed  land  and  erecting  a  fence 
several  rods  from  the  line  found  and  fixed  by  arbitrators,  to  whom  the  dispute 
had  been  referred,  was  not  a  breach  of  the  arbitration  bond. 

No  action  can  be  maintained  on  the  agreement  "to  abide  by  and  perform 
the  award. ' '  Such  an  act  before  the  award  is  made  would  be  a  breach  of  the 
submission,  and  would  give  an  action  on  the  bond  ;  but  the  award  having  been 
made  in  pursuance  of  the  submission,  the  parties  are  left  to  the  ordinary  reme- 
dies at  law  to  settle  subsequent  controversies,  and  they  afford  ample  redress. 

The  digging  up  and  removing  of  stone  monuments  erected  by  a  surveyor 
as  an  arbitrator  to  designate  the  division-line  found  and  established  by  his 
award,  by  one  party,  and  his  denying  that  to  be  the  true  line,  is  likewise  held 
not  to  be  a  breach  of  his  arbitration  bond.  He  is  liable  for  trespass  and  dam- 
ages consequent  to  it.5 

464.  Determination  by  Arbitrators  is  Final. — A  disputed  boundary  may 
be  conclusively  determined  by  a  third  person  as  an  arbitrator  or  an  umpire  on 
behalf  and  by  agreement  of  the  adjoining  owners.     This  third  party  or  arbi- 
trator is  usually  a  civil  engineer  or  surveyor,  or  an  odd  number  of  persons  who 

1 1  Amer.  &  Eng.  Ency.  Law  655.  Rep.  938. 

2 1  Amer.  &  Eng.  Ency.  Law  714.  5  Weeks  v.   Trask   (Me.),  16  All.   Rep. 

3  Pearson  v.  Barringer  (N.  C.),  13  S.  E.  413  [1889];    Marshall  v.   Reed,  48  N.  H. 
Rep.  942.  36. 

4  Lang    v.    Salliotte  (Mich.),  44  N.  W. 


§  46 5 •  OPERA  TOON'S  PREL IMINA RY    TO    CO NS  TR  UCTION.  3 1 8 

are  especially  qualified  to  determine  the  location  of  the  line,  and  in  whose 
honesty  and  qualifications  the  parties  have  confidence. 

When  adjoining  owners  have  mutually  agreed  to  submit  to  and  abide  by 
the  decision  of  a  third  person  in  regard  to  boundaries  in  dispute  between  them, 
and  the  question  has  been  decided  and  an  award  made,  the  decision  is  conclu- 
sive upon  both  parties  and  cannot  afterwards  be  questioned  or  disputed.  A 
valid  award  has  the  same  effect  as  a  judgment  and  effectually  precludes  the 
parties  to  the  controversy  from  ever  litigating  the  matters  anew.1 

Surveys  are  to  no  purpose  in  deciding  the  division-lines,  after  such  a  sub- 
mission and  award,  except  with  a  view  to  ascertaining  or  staking  out  the  lines 
determined  and  fixed  by  the  parties  to  whom  the  question  was  referred.  Such 
agreements  with  regard  to  boundaries  need  not  be  under  seal  nor  in  writing  ; 
they  may  be  simple  parol  agreements  ;  and  in  the  absence  of  any  provisions 
to  the  contrary  the  award  may  be  by  parol,2  or  by  the  act  of  the  arbitrator, 
who  may  himself  fix  the  line  according  to  his  award.3  The  fact  that  the  sub- 
mission is  in  writing  or  even  under  seal  does  not  require  that  the  award  be 
under  seal  or  in  writing.4  Nor  is  it  necessary  that  it  be  attested  by  witnesses. 

If,  however,  the  submission  contains  instructions  in  regard  to  the  form  ot  the 
award,  the  instructions  must  be  strictly  followed  unless  waived  by  the  parties  ; 
and  a  mere  intimation  that  a  written  award  is  required  will  suffice  to  render  it 
necessary.4 

465.  What  Constitutes  a  Submission. — Any  form  of  words  will  be   suf- 
ficient at  common  law  to  constitute  a  submission  to  arbitrators,  if  it  expresses 
the  intention  to  submit  to  and  abide  by  their  decision  and  award.     It  has  even 
been  held  that  the  intention  need  not  be  expressed  in  words,  but  the  submis- 
sion may  be  implied  by  law  from  their  acts  or  the  circumstances  attending  the 
submission.5     In  some  states   statute  laws  have  been  passed  requiring  certain 
ceremonies   in  case  of  submission  to    arbitration.     The  submission  must  be 
mutual  and  definite  in  its  terms  and  be  made  by  all  the  parties  to  the  dispute. 
It  should  be  certain  as  to  the  subject-matter  or  boundary-line  that  is  to  be  de- 
termined.    If  the  submission  is  uncertain,  the  award  may  be  set  aside.6 

466.  Arbitrators  Should  be  Named. — The  parties  to  whom  the  contro- 
versy is  referred  must  be  definitely  ascertained  and  agreed  upon  both  as  to 
number  and  name,  or  at  least  as  to  how  they  are  to  be  selected  and  ascertained. 
Where  an  agreement  was  made  to  refer  the  matter  in  dispute  '  'to  two  disinterested 
men,  together  with  a  surveyor,  with  privilege  to  call  in  a  third  party,"  it  was 
held  that  the  reference  was  to  two  arbitrators  only,  with  liberty  to  call  in  an- 
other, and  the  surveyor  was  designated  to  aid  and  not  to  act  as  one  of  them.7 

Ji  Amer.   &  Eng.   Ency.  Law  711.  Stewart  v.  Cass,  16  Vt.  663;  Valentine  v. 

3 1  Amer.  &  Eng.   Ency.  Law  692,  and  Valentine,  2    Barb.  Ch.  (N.  Y.)  430;  Wil- 

cases  cited.  son  v.  Getty,  57    Pa.   St.    266;    Evans    v. 

8  Jones  v.  Dewey,  17  N.  H.  596.  McKinsey/6  Litt.  (Ky.)  262. 

4  i  Amer.  &  Eng.  Ency.  Law  692.  6  Woodward  v.  Atwater,  3  Iowa  61. 

5  i    Amer.    &     Eng.     Ency.     Law    656;  7  Crawford  z/.  Orr,  84  N.  C.  246.  , 
Whitcher    v.    Whitcher,    49    N.   H.    176; 


319  BOUNDARIES  DETERMINED    BY  ARBITRATION.          §467. 

Any  one  may  be  an  arbitrator,  for  every  person  is  at  liberty  to  chose  whom 
he  likes  best  for  his  judge,  but  he  cannot  afterwards  object  to  the  manifest  de- 
ficiencies of  his  choice.1  The  only  thing  that  disqualifies  a  person  from  acting 
in  the  capacity  of  an  arbitrator  is  a  secret  interest  in  the  question  to  be  decided. 
If  the  interest  is  known  to  both  parties  to  the  dispute  and  they  do  not  object, 
they  will  be  considered  to  have  waivfed  their  objection  and  the  award  will  be 
binding  upon  the  parties.  Family  relationship  between  parties  and  any  pecu- 
niary or  property  interest  of  the  arbitrator  in  the  dispute  or  award,  the  recep- 
tion of  favors  or  gifts  by  the  arbitrator  which  may  have  the  effect  of  inducing 
him  to  act  unfairly,  if  not  known  to  the  other  party,  may  disqualify  him,  or  be 
sufficient  cause  for  the  court  to  set  aside  his  award. 

The  fact,  however,  that  the  arbitrator  has  been  counsel  in  another  action 
for  either  party,  or  that  one  of  the  parties  is  indebted  to  the  arbitrator  for  a 
small  amount  the  receipt  of  which  does  not  depend  on  the  award,  or  that  the 
arbitrator  is  a  debtor  to  one  of  the  parties,  is  not  sufficient  ground  for  disquali- 
fication or  to  give  a  court  jurisdiction.2 

467.  Award  is  Irrevocable  and  Binding. — It  is  only  after  the  question 
submitted  has  been  acted  upon  and  the  award  has  been  made  that  the  submis- 
sion becomes  irrevocable.  One  adjoining  owner  may  regret  his  act,  or  learn 
something  to  shake  his  confidence  in  the  arbitrator,  and  wish  to  rescind  his 
agreement  to  submit.  This  he  may  do  at  any  time  before  an  award  has  been 
made,  even  though  it  was  entered  into  for  a  consideration.  The  revocation 
must  be  express,  positive  and  absolute,  and  notice  be  given  to  the  other  party 
and  to  the  arbitrators,  in  order  to  have  it  amount  to  a  revocation  of  the  sub- 
mission. 

When  a  landowner  has  himself  assisted  in  making  the  survey  of  a  bound- 
ary-line and  has  himself  marked  the  line  through  woods,  and  a  conveyance  has 
been  made  by  such  line,  he  cannot  years  afterwards  deny  that  the  line  so 
marked  and  recognized  was  the  true  boundary-line.3  So  if  the  purchasers  of 
adjoining  land  take  possession  and  fence  their  lots  soon  after  a  survey  is  made, 
it  will  be  presumed  that  their  possession  was  taken  according  to  lines  estab- 
lished.4 So,  too,  if  a  fence  exist  and  be  pointed  out  as  the  boundary,  the 
person  so  designating  it  as  a  boundary  may  riot  thereafter  dispute  it.5 

Where  a  landowner  surveys  a  boundary -line  for  his  land,  which  is  publicly 
marked,  and  sells  land  with  reference  thereto,  he  is  estopped  from  denying 
the  correctness  of  its  location  as  against  one  locating  land  with  reference 
thereto.6 

An  agreement  for  a  survey  of  boundary-lines,  if  not  followed  by  an  actual 

1  i  Amer.  &  Eng.  Ency.  Law  671.  *  Root    v.    Cincinnati   (la.),  54   N.    W. 

2  Wait's    Engin.    &    Arch.    Jurisp.,    §§       Rep.  206. 

508-518,  523;  i  Amer.  &  Eng.  Ency.  Law  8  Phinney  v.  Campbell  (Wash.),  47  Pac. 

672,  673.  Rep.  502. 

'Chadwell  v.  Chadwell  (Tenn.),  23  S.  6New  York  &  T.  Land   Co.  v.  Gardner 

W.     Rep.    973;    Holland    v.    Thompson  (Tex.  Civ.  App.),  25  S.  W.  Rep.  737. 
(Tex.),  35  S.  W.  Rep.  19. 


§  468.          OPERATIONS  PRELIMINARY    TO    CONSTRUCTION.  32O 

survey,  cannot  affect  established  boundaries.1  After  an  agreement  in  regard 
to  a  boundary  all  the  persons  interested  on  the  lands  should  be  produced.'4 
When  a  boundary-line  has  been  fixed  by  a  surveyor  employed  by  several  prop- 
erty owners,  it  is  not  binding  on  such  owners  against  an  adjoining  owner  who 
was  not  a  party  to  the  surveying  and  who  never  acquiesced  in  the  award.3 

Where  adjoining  owners  have  located  a  boundary-line  with  the  obvious 
intention  of  making  it  the  true  line  and  have  acquiesced  therein,  it  raises  a 
presumption  that  that  is  the  true  line  which  is  not  overcome  by  the  mere  fact 
that  a  survey  made  long  before  the  government  monuments  had  been  obliter- 
ated reveals  a  different  line.4 

Where  adjoining  owners  submit  to  arbitration  the  question  as  to  the  true 
boundary-line  between  them,  the  award  is  sufficient  to  establish  the  line  as 
between  the  parties,  their  heirs  and  privies.5  The  conclusive  effect  of  a  survey 
establishing  a  boundary  between  adjoining  owners,  made  pursuant  to  statute, 
may  be  waived  by  the  parties  by  agreement  or  by  a  new  survey.6 

468,  Before  Award  is  Made,   Submission  to  Arbitration  may  be  Re- 
voked. —  If  the  agreement  to  submit  be  in  writing,  then  the  revocation  should 
also  be  in  writing,  and  a  submission  under  seal  should  be  revoked  by  an  instru- 
ment under  seal.     The  submission  may  be  revoked  by  change  of  circumstances, 
as   by   the  death  of  either  party  or  one  of  the  arbitrators,  unless  provisions 
have  been  made  for  such  an  emergency.     The  refusal  of  one  of  the  arbitrators 
to  act  may  work  a  revocation,  unless  the  statutes  or  the  submission  itself  pro- 
vides for  his  substitution  or  release.      The  bringing  of  a  lawsuit  on  the  same 
dispute  as  was  referred,  before  the  award  has  been  rendered  ;   the  marriage  (if 
at  common  law)  of  one  of  the  parties,  who  was  a  single  woman  ;  the  failure  to* 
fulfill  a  condition  which  by  the  terms  of  the  submission  was  to  occur  before  the 
award,  may  each  and  all  operate  as  a  revocation.      The  sale  of  the  tract  whose 
boundary  has  been  submitted  revokes  the  submission,  as  the  submission  is  not 
binding  upon  the  purchaser  if  he  bought  without  notice  of  the  submission. 

If  one  party  revoke  without  the  consent  of  the  other,  he  renders  himself 
liable  to  an  action  of  damages  for  the  breach  of  his  contract.  The  damages 
will  be  confined  to  what  the  other  party  has  actually  suffered,  and  this  is  so 
even  though  a  bond  has  been  given  and  the  penalty  named.7 

469.  Award  of  Arbitrators  Held  Not  to  Affect  the  Title  to  Land.  —  In 
New  York  state  there  exists  a  statute  which  makes  awards  regarding  all  matters 
of  real  estate  absolutely  void,  but  it  is  held  to  refer  only  to  cases  where  a 
claim  to  the  legal  title  is  involved.8 


v.  Eldridge  (Ind.),  36  N.  E.  Rep.  'Kennedy  v.    Farley  (Sup.),  31   N.  Y. 

522.  Supp.  274. 

2  Donaldson    v.   Rail   (Tex.),  37  S.  W.  6  Spacy  v.  Evans  (Ind.),  48   N.  E.  Rep* 

Rep.  16.  355  [1897]- 

5  Kempmann    v.    Heintz  (Tex.),   24  S.  7i  Amer.  &  Eng.Ency.  Law  664-666. 

W.  Rep.  329.  8i  Amer.  &  Eng.  Ency.  Law  660;  2  id 

4  Wollman  v.  Ruehle,   75  N.  W.   Rep.  (2d  ed.)  801. 
425- 


321  BOUNDARIES  DETERMINED   BY  ARBITRATION.          §  4?2. 

Though  awards  with  regard  to  boundaries  may  not  change,  in  general,  the 
ownership  of  strips  or  small  pieces  of  land,  yet  such  strips  or  pieces  are 
subjects  for  arbitration,  their  establishment  not  being  regarded  as  a  transfer  of 
property,  but  rather  as  the  determination  of  the  true  boundary.  The  submis- 
sion need  not,  therefore,  be  under  seal  nor  even  in  writing.  If,  however,  any 
question  as  to  title  or  ownership  of  real  estate  is  to  be  determined  it  must  be 
in  writing  and  under  seal.1 

470;  Disputes  Should  be  Submitted  to  Arbitration. — When  a  surveyor 
has  been  engaged  to  settle  a  disputed  boundary  between  two  parties,  and  they 
have  agreed  to  abide  by  his  decision  in  the  matter,  it  is  desirable  to  make  that 
agreement  a  submission  to  arbitration,  and  he  should  exercise  his  persuasion 
to  have  it  so  made  in  writing  and  under  seal.  It  gives  the  surveyor  perfect 
freedom  to  exercise  his  free  and  unprejudiced  judgment.  He  can  reprove 
and  resent  any  urging,  pressure,,  or  tendencies  brought  by  either  party  to 
swerve  him  from  the  cold  mathematical  results  that  his  instruments,  figures, 
and  good  judgment  give.  Being  in  the  employ  of  both  and  neither  separately, 
he  is  in  no  way  under  obligations  to  them,  nor  they  to  him. 

471.  Submission — Its  Form  and  Contents.— Though  such  a  submission 
is  not  required  by  law  to  be  in  writing,  yet  it  is, recommended  in  this  as  in  all 
other  business  that  it  be  made  of  record.      If  the  parties  mean  business  and 
are  not  of  the  over-cautious  class,   they  will  not  generally  hesitate  to  make 
their  submission  under  seal,  binding  it  with  a  bond  or  penalty.      A  surveyor 
must  be  guided  in  this  by  the    dispositions  of   the  parties,   the  interests  at 
stake,  and  the  difficulties  attending  the  solution  of  the  controversy.      If  titles 
are  likely  to  be  affected  or  property  change  hands,  it  is  imperative  that  the 
submission  shall  be  under  seal,2  and  for  this  reason  it  is  necessary  that  there 
be  evidence  of  the  submission.     A  written  contract  will  best  establish  such  an 
agreement,  and  it  is  therefore  recommended. 

The  submission  should  be  drawn  in  acccordance  with  the  suggestions, 
pointed  out  in  the  preceding  pages,  and  should  plainly  show  the  intention  of 
the  parties  as  to  what  they  wish  to  submit,  the  subject-matter,  and  to  whom 
they  submit  it,  as  arbitrator(s).  Frequently  the  agreement  to  submit  has. 
been  entered  into  before  the  surveyor  is  apprised  of  it,  in  which  case  he  has- 
only  to  act  according  to  its  terms.  The  surveyor  is  to  look  to  the  agreement 
of  submission  for  his  duties  and  powers,  and  if  they  are  not  denned  or 
modified  by  state  statutes  he  will  be  guided  entirely  by  the  submission,, 
including  the  papers,  maps,  and  documents  to  which  it  refers.3 

472.  Powers  of  Arbitrator  are  Sometimes  Restricted. — His  powers  may 
be  restricted  by  the  submission;  but  if  they  are  not  and  the  submission  is 

1  A'f  '  Jackson  v.   Gager,   5   Cowen   383;  450;  Bowen  v.  Cooper  (Pa.),  7  Watts  311; 

Copeiand  v.    Wading  Riv.  Res.  Co.,   105  Davis  v.  Harvard   (Pa.),  15    S.  &  R.  162; 

Mass.  397;  Smith  v.  Bullock,  16  Vt.    592,  Snodgrass  v.  Smith,  13  Ind.  393. 

663;  Ryder  v.  Dodge.    14   Wk.    Dig.  (N.  2  Koon  v.  Hollingsworth,  97  111.  52. 

Y.)  84;     French  v.  Richardson,  5    Cush.  *  i  Amer.  &  Eng.  Ency.  Law  675. 


§473-  OPERATIONS   PRELIMINARY    TO    CONSTRUCTION.  $22 

general,  he  is  sole  judge  of  law  and  facts,  and  his  decision  will  not  be  set  aside 
because  he  has  made  a  mistake  as  to  the  law  or  facts.  Frequently  submis- 
sions are  restricted  to  matters  of  fact  only,  which  gives  the  court  liberty  to 
review  or  decide  as  to  matters  of  law. 

The  surveyor  having  ascertained  the  facts  of  the  case,  which  would 
ordinarily  be  found  by  a  jury,  reports  them  to  the  court,  who  upon  those 
facts  decides  the  question  as  to  the  law  and  the  rights  of  the  parties  to  the 
controversy. 

If  a  surveyor  shows  in  his  award  an  intention  to  decide  the  question 
according  to  law,  for  example  by  giving  reasons  for  his  award,  and  is  mis- 
taken as  to  the  law,  then  the  award  may  be  set  aside.  An  agreement  between 
contiguous  owners  to  employ  a  surveyor  to  establish  a  boundary-line  does  not 
estop  either  from  showing  a  mistake  in  line  as  run. l 

A  mistake  of  facts  may  render  an  award  void  when  the  mistake  is  of  such 
a  nature  as  to  show  that  the  award  is  not  the  result  of  the  true  judgment  of 
the  arbitrator.2 

473.  Mistakes  of  Surveyor  as  an  Arbitrator. — It  must  be  shown  that  the 
mistake  has  misled  or  deceived  the  surveyor,  so  that  he  has  not  exercised  his 
deliberate  and  fair  judgment :  some  mistake  as  to  facts  inadvertently  assumed 
or  believed  which  can  be  shown  to  have  been  contrary  to  what  his  judgment 
was  based  upon.  Good  illustrations  are  the  use  of  false  measures :  as  a  tape 
or  chain  that  is  too  long  or  too  short,  believing  them  to  be  correct;  the  use 
of  a  compass  to  ascertain  bearings,  when  it  is  afterwards  discovered  that  by 
accident  or  fraud  the  movement  of  the  needle  was  restrained  or  disturbed,  this 
being  wholly  unknown  to  the  surveyor.  It  must  be  a  pure  mistake  by  which 
his  judgment,  as  well  as  the  needle,  has  been  swerved  from  the  true  direction 
which  it  would  have  taken  had  it  followed  the  true  law  understood  to  govern 
it. 

The  mistake  must  be  of  a  fact  upon  which  the  judgment  of  the  surveyor 
has  not  passed  as  a  part  of  his  judicial  investigation.  It  must  be  of  such  a 
nature  and  so  proved  as  to  lead  to  a  reasonable  belief  that  he  was  misled  and 
deceived  by  it,  and  that  if  he  had  known  the  truth  he  would  have  come  to  a 
different  result.  Then  and  only  then  will  a  court  set  aside  his. award.  If, 
however,  the  mistake  was  due  to  some  unsound  or  erroneous  theory  of 
magnetism  adopted  and  applied  by  him  in  regard  to  the  actual  variation  of 
the  needle,  leading  to  the  same  errors  as  before,  it  would  not  be  such  a  mis- 
take as  would  justify  a  court  in  setting  aside  the  award;  for  it  would  be  an 
appeal  from  the  surveyor's  decision,  where  he  had  exercised  his  judgment. 

Another  instance  suggested  is  one  of  mathematical  computations.  If  the 
surveyor  has  used  logarithms,  believing  them  to  be  correct,  which  are  after- 
wards shown  to  be  erroneous,  it  would  be  a  mistake  by  which  he  was  misled, 

1  Watrous    v.    Morrison  (Fla.),   14  So.  2 1  Amer.  &  Eng.  Ency.  Law  709.    • 

Rep.  805. 


BOUNDARIES  DETERMINED    BY  ARBITRATION.          §  476. 

his  judgment  not  being  fully  exercised;  but  if  the  surveyor  has  purposely  and 
deliberately  adopted  some  process  of  mathematical  reasoning  or  some  method 
of  calculation  which  he  believed  to  be  correct,  his  award  cannot  be  impugned 
by  the  testimony  of  other  mathematicians,  tending  to  show  that  it  was 
erroneous.1  It  is  presumed  that  it  was  on  account  of  the  surveyor's  learning, 
views,  and  judgment  that  he  was  selected  by  the  parties  to  decide  this  ques- 
tion between  them.  His  award  cannot,  therefore,  be  assailed  upon  points 
where  this  judgment  and  understanding  have  been  exercised.2 

Mistakes  in  charging  interest,  and.  errors  in  computations,  which  may  be 
corrected  and  made  certain  by  mathematical  calculations,  will  not  avoid  an 
award. 3 

474.  Arbitrator  must  Not  Exceed  his  Powers. — 11  a  surveyor  exceeds  the 
powers  given  him  by  the  submission,  he  may  thereby  render  his  award  void.4 
The  fact  that  he  has  exceeded  his  power  as  regards  part  of  the  award  does 
not  vitiate  the  remainder  of  it.5     It  may  be  valid  as  to  the  matters  submitted, 
and  void  as  to  matters  decided  upon  but  which  were  not  embraced  in  the 
submission.6 

The  award  must  decide  all  the  questions  contained  in  the  submission,  for 
material  omissions  may  render  it  void.5  To  be  conclusive  it  must  contain  in 
express  terms  a  distinct  determination  of  the  exact  points  submitted.7  The 
surveyor's  report  or  award  should  be  in  such  language  as  to  show  the  parties 
that  the  matters  submitted  had  been  considered  and  decided  by  him.8 

475.  Submission  to  Several  Arbitrators. — If  there  are  several  persons  to 
whom  the  question  is  referred,  the  agreement  of  all  is  necessary  to  an  award, 
unless  it  is  expressly  agreed  that  a  less  number  may  make  it.9     Unless  so 
stipulated,  an  award  signed  by  three  of  five  referees  will  not  settle  the  question 
nor  conclude  the  parties. 

476.  Arbitrators  may  Not  Delegate  their   Duties  and  Powers. — Arbi- 
trators (surveyors)  cannpt  delegate  their  duties  and  powers  or  appoint  a  sub- 
stitute for  an  absent  member.     Where  provisions  are  made  in  their  submission 
for  the  appointment  of  a  substitute,  and  where  "  another  or  others  are  to  be 
chosen  in  the  place  of  those  unable  or  unwilling  to  act,"  the  right  to  choose 
substitutes  is  in  the  parties  and  not  in  the  other  arbitrators.      The  arbitrators 
may  not  delegate  their  powers  to  each  other.      The  decision  of  a  point  of 
law  arising  out  of  the  dispute  may  not  be  decided  by  one  of  their  number 
who  is  a  lawyer. 10     They  cannot   delegate   their  powers  to  the  court  which 
appointed  them,  or  provide  for  a  further  settlement  by  some  other  tribunal ; 

1  Opinion    of    Chief    Justice     Shaw    in  5  Jackson  &  Co.  z>.  Ambler,  14   Johns. 
Boston  Water-power  Co.  v.  Gray,  6  Met.       96  [1817]. 

169  [1843].  6  Bogan  v.  Daughdrill,  51  Ala.  312. 

2  See  Wait's  Engin.  &  Arch.  Jurisp.,  §§  7  Walker  v.  Simpson  (Me.),  13  Atl.Rep. 
429-438.                                                                     580  [1888]. 

'Gardner    v.   Masters  (N.  C.),  3  Jones  8  Walker  v.  Simpson,  supra. 

Eq.  462;  Clement  v.  Foster,  69  Me.  318.  9  Oakley  v.  Anderson,  93  N.  C.  108. 

*l  Amer.  &   Eng.  Ency.  Law  675,  676.  10  Little  v.  Newton,  9  Dowl.  437. 


§477-  OPERATIONS  PRELIMINARY   TO    CONSTRUCTION.  324 

or  make  their  award  on  the  decision  of  an  umpire  called  in  to  decide,  without 
exercising  their  own  judgment.1  They  must  decide  according  to  their  own 
convictions  and  judgments  to  render  their  award  valid. 

477.  Ministerial  Duties  of  Arbitrators  may  be  Delegated. — Mere  minis- 
terial acts  may  be  delegated,  such  as  holding  one  end  of  a  chain  in  measuring 
distances,  reading  angles  and  bearings,  acts  which  the  inconvenience  and 
customs  of  surveying  would  render  impracticable  or  impossible  for  the 
surveyor  to  undertake  himself. a  What  the  parties  seek  in  referring  the  dispute 
to  arbitration  is  the  surveyor's  personal  judgment,  discretion,  and  ability,  and 
the  exercise  of  these  they  can  demand.  Any  acts  that  are  purely  ministerial 
and  do  not  require  the  surveyor's  personal  skill,  integrity,  and  judgment  may 
be  delegated. 

Technically  this  would  confine  the  operations  of  surveying  that  could  be 
delegated  to  a  very  small  compass.  The  simple  reading  of  a  tape  or  of  an 
angle  is  an  act  requiring  skill  and  experience,  and  there  is  little  doubt  but 
that  the  parties  can  demand  with  some  justice  that  these  acts  be  at  least  under 
the  immediate  direction  and  supervision  of  the  arbitrator  if  he  be  a  surveyor. 
The  apparent  intention  of  the  parties  as  shown  by  their  submission  and  the 
attendant  circumstances  would  have  much  weight  in  determining  to  what 
extent  the  surveyor  might  delegate  his  duties  and  powers.  Where  arbitrators 
are  selected  with  special  reference  to  their  skill,  knowledge,  and  experience,  as 
a  surveyor  is,  he  might  reasonably  be  expected  to  conduct  the  survey.  The 
extent  and  magnitude  of  the  survey,  the  time  given  for  the  award,  and  other 
similar  circumstances  may  show  that  no  such  personal  conduct  of  the  work 
was  expected  by  the  parties,  but  that  it  was  to  be  accomplished  by  assistants.3 
Custom  may  authorize  the  delegation  of  certain  acts.4  The  methods  and 
customs  generally  employed  in  surveying  would  permit  a  surveyor's  assistants 
to  do  the  chaining  or  measuring,  and  frequently  all  of  the  field  operations. 
The  extent  of  the  surveyor's  business,  his  usual  practice  in  similar  cases,  the 
number  of  assistants  employed  by  him,  and  similar  facts,  if  known  to  the 
parties,  would  bear  upon  the  case  as  evidence  of  the  parties'  intentions  and  of 
the  custom.5 

Though  an  arbitrator  may  not  delegate  his  powers  and  duties,  he  may  call 
in  and  consult  accountants,  appraisers,  lawyers,  experts,  and  other  surveyors, 
but  may  not  leave  the  decision  to  them.  He  may  use  their  opinions  as  a  basis 
for  his  own  decision,  when  satisfied  of  their  accuracy.  He  may  employ  legal 
counsel  to  assist  him  in  framing  the  award,  even  the  counsel  of  one  of  the 
parties.6 


*i  Amer.  &  Eng.  Ency.  Law  678.  Y.  117;  Darling  v.  Stanwood,  14    Allen 

2  Thorp  v.  Cole,  a    C.   M.    &    R.     367;  504. 

Harvey  v.  Shelton,  7  Beav.  455.  5  Herrick    v.     Belknap,      27     Vt.     673 

8  Palmer  v.  Clark,  106  Mass.  373.  [1854]. 

*  Bodine  v.  Exch.  Fire    Ins.  Co.,  51  N.  6i  Amer.  &  Eng.  Ency.  Law  678. 


325  BOUNDARIES  DETERMINED   BY  ARBITRATION.          §479' 

478.  Powers  of  Surveyors   as  Arbitrators   to   Summon  Witnesses  and 
Conduct   Investigation, — Arbitrators    have    no    power    by   common    law   to 
summon  witnesses  or  administer  oaths.      It  is,  however,  frequently  given  to 
them  by  statute  in  different  states.      When  there  is  no  statute  bestowing  such 
power,  they  must  call  to  their  assistance  some  officer  who  has  the  power,  if 
the  parties  desire  the  testimony  to  be  under  oath.      Where  power  is  given  to 
compel   the  attendance  of  witnesses  they  are  protected   from  arrest,  and  the 
parties  and  their  counsel  as  well.      In  conducting  a  case  the  arbitrator  is  sole 
judge  of  all  questions  ordinarily  within  the  power  of  a  court.      He  is  not 
bound  by  rules  of  law  or  of  custom.      He  may  adjourn,  recall,  and  continue 
the  case  as  he  sees  fit.      He  may  reopen  a  case  to  receive  new  evidence  even 
after  he  has  prepared  his  award,  and  at  any  time  before  delivering  it,  or  he 
may  refuse  to  reopen  it,  according  to  his  discretion.      If  he  is  not  an  officer 
of  a  court,  or  deciding  a  question  referred  to  by  the  court,  he  may  make  his 
own  rules  as  to  witnesses  and  evidence.     He  may  receive  evidence  that  a  court 
would  not  admit,  and  permit  witnesses  to  testify  who  are  legally  incompetent. 
Though  these  arbitrary  powers  are  conceded  to  arbitrators,  it  is  by  no  means 
recommended  that  they  be  exercised.     They  may  be  evidence  of  fraud  and 
oppression,  which  will  be  fatal  to  the  award  rendered.1 

The  arbitrator  must  hear  all  the  evidence,  but  he  may  limit  or  not,  in 
his  discretion,  the  number  of  witnesses  and  the  quantity  of  evidence  upon 
matters  which  have  been  particularly  submitted  to  his  judgment  and  in  which 
he  has  special  skill  and  knowledge.  It  is  within  his  discretion  whether  or 
not  he  will  comply  with  the  request  of  one  of  the  parties  to  go  and  view 
premises  with  reference  to  claims  of  a  builder  for  work  done.2  - 

In  the  absence  of  any  arrangement  in  the  submission  the  arbitrator  may 
name  the  time  and  place  of  hearing,  he  may  postpone  the  appointment  or 
revoke  it.  If  one  party  absents  himself  and  the  arbiter  has  reason  to  believe 
the  absence  is  intentional  and  intended  to  defeat  the  object  of  the  reference 
and  to  prevent  justice,  he  may  give  that  party  notice  of  his  intention  to 
proceed  with  the  case  at  a  specified  time  and  place,  ex  parte,  or  when  either 
party  has  failed  to  appear  and  has  not  given  reasonable  excuse.  An  arbitrator 
may  properly  visit  a  sick  or  infirm  person  at  that  person's  own  residence  to 
take  testimony. 

479.  Arbitrators  must  Receive  Evidence. — Under  a  submission  to  arbi- 
trators by  which  they  are  to  settle  the  boundary-lines  and  all  matters  of  differ- 
ence in  relation  thereto,  a  refusal  by  the  arbitrators  to  receive  and  consider 
certain  deeds  and  plats  offered  for  the  purpose  of  showing  the  lines  of  one  of 
the  parties  is  sufficient  reason  for  setting  aside  the  award;3  but  not  on  the 
ground  that  the  arbitrators  refused  to  hear  pertinent  testimony,  when  the  party 

1  i  Amer.  &  Eng.  Ency.  Law  679,  680.  'Hurdle    v.    Stallings  (N.  C.),  13  S.  E- 

2  Wait's    Engin.    &    Arch.    Jurisp.,    §§       Rep.  720  [1891]. 
527-532;  i  Amer.  &  Eng.  Ency.  Law  682. 


§  480.  OPERATIONS  PRELIMINARY    TO    CONSTRUCTION.  326 

objecting  to  the  award  only  announced  his  willingness  to  introduce  testimony 
without  actually  offering  any.1 

480,  Surveyors  as  Arbitrators  must  Act  Together, — If  there  are  more 
than  one  arbitrator,  they  must  all  act  together;  the  absence  of  one,  or  his 
refusal  to  act,  puts  a  stop  to  proceedings.     The  disputants  are  entitled  to  the 
exercise  of  the  judgment   and   discretion   and  to   the  benefit  of  the  views, 
arguments,  and  influence  of  each  one  of  the  persons  whom  they  have  chosen 
to  judge  for  them;  and  they  are  entitled  to  these  not  only  in  the  award,  but 
at  every  stage  of  the  arbitration.      This  is  so  even  where  the  submission  does 
empower  a  majority  to  decide.     This  principle  is  strictly  applied.      It   was 
applied  to  a  case  where  an  award  was  determined  upon  by  all  together,  drawn 
up   by   a   counselor,    and   afterwards   carried   around    to   each   separately  for 
execution.     An  award  by  three  arbitrators,  signed  by  two  of  them  in  each 
other's  presence,   and  by  the  third  in  the  presence  of  one  or  the   other   at 
different  times  and  places,  was  set  aside.     All  must  act  together  throughout 
the  deliberations  which  lead  to  the  award,  and  all  must  together  execute  the 
award  at  the  same  time  and  place  and  in  the  presence  of  each  other. a 

481,  Notice  to  Parties  of  Hearing. — The  parties  must  be  heard  in  the 
presence  of  each  other.     At  the  same  time  that  the  surveyor  makes  the  survey 
it  is  customary  to  notify  the  parties,  that  they  may  be  present.      It  is  sub- 
mitted  that   this   latter   courtesy  to  the   parties   is   not   necessary,    nor  even 
advisable,  if  the  surveyor  can  make  the  survey  from  the  deeds  alone  without 
the  parties'  assistance.     They  are  generally  a  great    annoyance,    constantly 
offering  assistance,  suggestions,  and  objections,  all  of  which  delay  the  work. 
Not  infrequently  their   presence  renews  old    quarrels    between    the    parties, 
which  increases  the  animosity  and  makes  the  question  more  difficult  of  an 
amicable  settlement.     Surveyors  are  too  familiar  with  these  scenes  to  require 
a  detailed  description. 

Notice  need  be  given  only  when  evidence  is  to  be  received;  and  if  the  sur- 
veyors or  arbitrators  can  complete  their  survey  without  the  presence  of  either 
party  or  of  parties  interested,  it  is  recommended  that  it  be  so  completed.  If 
either  party  is  to  be  present,  as  in  cases  where  the  boundary  is  near  or  in  view 
of  the  residence  of  either  adjoining  owner,  it  is  deemed  better  to  notify  both 
so  that  they  may  be  present.  If  they  are  not  notified,  and  one  should  be 
present  and  inquiries  should  be  made  of  persons  present,  it  might  prove  fatal 
to  the  award.3  Where  no  evidence  is  received,  no  notice  need  be  given  to 
the  parties,  as,  for  instance,  when  the  arbitrators  meet  for  the  purpose  of  con- 
sultation and  to  draft  and  sign  the  award. 

482,  Compensation    of    Surveyors    as   Arbitrators,  —  An    arbitrator    is 
entitled  to  pay  for  every  day  he  is  necessarily  employed,  including  the  delib- 

1Stemmer   v.   Scottish    Union  &    Na-  2i  Amer.  &  Eng.  Ency.  Law  684. 

tional    Ins.   Co.  (Or.),  53    Pac.  Rep.    498  8  i  Amer.  &  Eng.  Ency.  Law  686. 

[1898]. 


327  BO  UND  A  RIES  D  E  TERM1NED    BY  A  RBITRA  TION.          §485. 

eration;  and  his  compensation  will  not  be  defeated  by  reason  of  failure  to 
render  all  the  services  expected  of  Him.  He  is  entitled  to  reasonable  com- 
pensation for  all  services  actually  rendered  or  expenses  incurred;  even  if  the 
submission  does  not  provide  for  it,  and  may  award  fees  to  himself.  He  has 
a  lien  on  the  award  for  the  amount  of  his  fees,  and  may  retain  it  until  they 
are  paid.1  Each  party  is  liable  to  him  for  the  full  amount. a  It  seems  that 
when  there  are  several  arbitrators  each  must  sue  for  the  compensation  to 
which  he  is  entitled.3 

483.  Surveyor's  Powers  are   at   an   End  when  Award  is  Made, — An 
arbitrator's  (surveyor's)  duties  and  powers  end  with  the  making  and  delivery 
of  the  award  according  to  the  terms  of  the  submission.      He  may  not  after 
rendering  the  award  review  his  decision,  exercise  afresh  judgment  on  the  case, 
or  alter  the  award  in  any  particular.      The  boundary  once  determined  and 
located  by  the  surveyor  cannot  be  changed  subsequently.     If  he  attempts  an 
alteration  it  is  without  effect,  and  the  original  award  will  stand.      His  powers 
are  so  entirely  at  an  end  with  the  execution  and  delivery  of  the  award  that  he 
cannot  even  correct  a  manifest  error  in  the  calculation  of  figures,  or  in  mis- 
placed words  or  names.*     The  award  stands  as  executed  and  delivered  even 
in  the  face  of  apparent  mistakes. 4 

484.  Form  of  Award, — An  award  to  be  valid  requires  no  particular  form, 
but  must  express  an  actual  decision,  something  more  than  mere  propositions 
and  suggestions.     The  award  should  decide  the  question  at  issue  and  decree 
the  remedy.      It  must  be  final  and  certain,  and  if  expressed  in  such  language 
as  laymen  acquainted  with  the  subject  can  understand,   technical  precision 
and  certainty  are  not  necessary. 

485.  The  Award  must  be  Certain  and  Definite. — Awards  concerning  real 
estate  or  boundaries  of  land  are  sufficiently  certain  if  they  can  be  located  so 
as  to  give  possession  of  the  premises,  and  to  designate  the  limits  by  metes  and 
bounds.      Any  description    sufficient  as  a  conveyance  should  answer  in    an 
award,  f     An  award  is  certain  if  it  gives  directions  so  that  any  competent 
surveyor  can  find  the  corners  and  lines  by  following  those  directions.5     If  the 
terminal  points  of  a  disputed  line  are  fixed  with  accuracy,  and  the  course  and 
distances  given,  it  is  not  uncertain.6     An  award  of  three-quarters  of  the  whole 
section  taken  from  the  upper  part  of  said  land,7  or  "up  to  the  original  claim 
line,  if  the  line  can  be  ascertained,"  or  "the  north  line,  so  called,  between  A 
and  B"  were  all  held  sufficiently  certain8  if  they  could  be  located  by  com- 

1  Clement  v.  Comstock,  2  Mich.  359.  246;  Crawford  v.  Orr,  84  N.  C.  246. 

2  Young  v.  Starkey,  i  Cal.  426.  6  Crawford  v.  Orr,  84  N.  C.  246. 

3  See  Wait's    Engin.    &  Arch.  Jurisp.,  7  Duncan    v.    Duncan,   i    Ired.  (N.  C.) 
§  533-  466. 

4 1  Amer.  &  Eng.  Ency.  Law  689.  8Caldwell      v.      Dickinson,      13    Gray 

5 Rogers  v.  Carrothers,  26  W.  Va.  238,       (Mass.)  365. 

*  See  Sees.  467,  473,  supra.  \  See  Sees.  541-559,  infra. 


\ 
I  486.          OPERATIONS  PRELIMINARY    TO    CONSTRUCTION.  328 

•petent  surveyors.1  An  award  was  held  to  be  valid  that  provided  that  a  subse- 
quent survey  should  fix  the  boundary-line  in  dispute.2  The  award  may  refer 
to  field-books,  maps,  and  documents,  if  sufficiently  described  and  accessible 
to  the  parties.3 

If  the  award  fail  to  disclose  where  the  boundaries  were  located  by  the 
arbitrators,  it  is  not  sufficient  to  show  an  agreed  boundary.4  An  award 
stating  that  the  arbitrators  did  run  "  the  following  described  line  as  the 
dividing-line  and  do  hereby  establish  the  same  as  the  true  dividing-line," 
giving  a  description  of  the  line,  is  void  where  it  appears  from  statements  by 
the  arbitrators  while  running  the  line  that  they  did  not  intend  to  follow  the 
terms  of  the  submission  to  run  the  dividing-line  between  the  lands  of  the 
parties,  but  a  proposed  line.5  So  is  a  boundary-line  uncertain  when  fixed 
from  one  known  monument  to  another  by  reference  to  land  of  one  of  the 
parties,6  or  when  one  of  the  monuments  named  in  the  award  is  by  parol 
-evidence  proved  not  to  exist.7  But  an  award  ordering  a  conveyance  of  real 
•estate  up  to  the  original  claim-line  is  not  void  for  uncertainty,  as  such  a  line 
may  be  ascertained.8 

486,  The  Award  must  be  Possible. — The  award  must  not  require  the 
doing  of  something  that  is  illegal  or  impossible  in  itself;  for  if  it  contains 
such  a  decree,  it  will  be  void  for  so  much  at  least.  Thus  a  decree  in  an 
.award  will  be  void  if  it  require  one  to  do  a  thing  in  the  past,  or  to  turn  the 
•course  of  a  river.  The  impossibility  must  be  apparent  upon  the  face  of  the 
award.  To  order  a  person  to  pay  a  sum  greater  than  what  he  may  possess 
is  not  an  impossibility  that  will  avoid  the  award.9 

1  But  see  Clark  v.  Burt,  4  Cush.(Mass.)  5  Walker  v.  Simpson  (Me.),  isAtl.  Rep. 
396;  Morse  on  Arbitration  428;  Giddings       580  [1888]. 

v.    Hadaway,    28    Vt.    342;    2    Amer.  &  6  Clark  v.  Burt,  4  Cush.  (Mass.)  396. 

Eng.    Ency.   Law  (2d  ed.)  761.  7  Giddings  v.  Haddaway,  28  Vt.  342. 

2  2  Hard.  (Ky.)  318.  8  Williams  v.  Warren,  21  111.  541. 

3  Darge    v.    Haricon    I.    Mfg.    Co.,    22  9  Russell  on  Arbitration  305;  Young  v. 
Wis.  691;  Jackson  v.  Ambler,   14   Johns.  Renbin,  I  Dall.  (U.  S.)   119;  Yeamans  v. 
<N.  Y.)  96.  Yeamans,  99  Mass.  585;  Maybin   v.  Con- 

4Hayden  v.  Brown  (Ore.),  53  Pac.  Rep.       Ion,  4  Dall.  (U.  S.)  298;  2  Amer.  &  Eng. 
490  [1898].  Ency.  Law  (2d  ed.)  772. 


CHAPTER  XXVII. 
BOUNDARIES  ESTABLISHED  BY  AGREEMENT  OR  ACQUIESCENCE. 

491.  Settlement  of  Controversies  is  Encouraged  by  the  Courts. — It  is  a 

policy  of  the  courts  and  of  the  law,  and  presumably  of  .the  legal  profession, 
to  settle  disputes  by  amicable  adjustments,  and  to  do  all  within  their  power 
to  quiet  titles.  The  exclusion  of  evidence  of  parties  offering  to  settle  before 
or  after  a  suit  is  brought,  the  passing  of  statutes  of  limitations  and  of  frauds, 
both  show  this  effort  on  the  part  of  the  law  to  quiet  titles  and  make  secure 
the  rights  of  citizens.  Likewise  it  is  the  policy  of  the  courts  to  encourage 
parties  themselves  to  settle  their  disputes  as  to  boundaries,  and  to  adjust 
them  between  themselves;  and  when  this  has  been  done  and  the  parties  have 
agreed  to  a  certain  location  of  their  boundaries,  they  are  so  bound,  and 
courts  will  not  relieve  them  from  their  agreement,  even  though  they  do  not 
conform  to  the  description  in  the  deed,  and  include  more  or  less  land  than  is 
mentioned  in  the  deed.1  Under  certain  conditions  it  is  not  necessary  even 
that  there  be  a  covenant  or  agreement,  but  mere  acquiescence  is  sufficient  to 
establish  the  boundary  conclusively  and  finally.2 

492.  Determination  of  Boundaries  by  Mutual  Consent.  -Location  of  the 
boundary  by  the  grantor  who  made  the  survey  and  marked  it  by  stakes,  when 
coupled  with  evidence  of  an  acceptance  by  the  grantee  of  such  location,  by 
setting  his  fence  by  the  stakes,  is  competent  evidence  of  a  location  by  mutual 
consent,  which,  when  once  made,  will  be  conclusive  upon  both  parties.3 

By  agreement  landowners  may  establish  a  final  5and  decisive  boundary 
without  reference  to  the  line  of  the  government  survey.4  Where  parties 
acquiesce  for  the  -statutory  period  in  a  line  between  two  quarter  sections 
owned  by  them  respectively,  though  the  line  may  vary  from  the  government 
survey,  it  becomes  the  boundary-line  between  the  quarters.5 

A  boundary-line  supposed  to  be  the  true  boundary,  and  long  acquiesced 

1  Emery  v.  Fowler,  38  Me.  99;  Culbert-       cinnati  (Iowa)  54  N.  W.  Rep.  206. 

son    v.    Duncan    (Pa.),   13  All.   Rep.  966  *Cox    v.    Daugherty  (Ark.),  36  S.   W. 

[1888];  Kellogg  z/.  Smith  (Mass.),  7  Cush.  Rep.  184. 

375-  5Husted  v.  Willoughby  (Mich.),  75  N. 

2  Miles  t/.  Barrows,  122  Mass.  579.  W.   Rep.   279   [1898];    Stark    v.    Homuth 

3  Jackson  v.  Perrine,  35  N.  J.   Law  137;  (Tex.),  45  S.  W.  Rep.  761  [1898].    But  see 
New    York    &  T.    Land   Co.  v.  Gardner  Ward  v.  Ihler  (Mo.),  34  S.  W.  Rep.  251. 
(Tex.),  25  S.  W.  Rep.   737;  Root  v.  Cin- 

329 


§493-          OPERATIONS  PRELIMINARY    TO   CONSTRUCTION.  330 

in  as  such,  affords  better  evidence  of  the  location  of  the  true  line  than  a 
survey  made  after  the  original  monuments  have  disappeared. l 

Where  landowners  agree  to  select  men  to  run  a  dividing-line,  and,  having 
run  the  line  from  one  terminal  point  to  the  other,  the  men  rerun  and  retrace 
it  to  the  beginning  point,  the  retraced  line  forms  a  substantial  part  of  the 
agreement  and  cannot  be  dispensed  with  except  by  consent  of  the  owners.''2 

Long  practical  acquiescence  of  the  parties  concerned  in  a  supposed 
boundary-line  should  be  regarded  as  such  an  agreement  between  them  as  to 
be  conclusive  even  if  the  line  were  originally  located  erroneously.3 

493.  Boundaries  Designated  by  Grantor  at  Time  of  Transfer, — When  a 
person  jells  part  of  a  tract  of  land  by  general  description,  and  himself  subse- 
quently fixes  the  corners  of  lines  or  goes  upon  the  land  with  the  grantee  and 
designates  or  points. out  the  monuments  or  lines  of  fences  which  bound  it, 
and  permits  the  grantee  to  make  improvements  with  reference  to  lines  thus 
fixed  or  designated,  he  will  be  bound  by  such  boundaries.4  A  statement  by 
an  owner  to  the  purchaser  of  an  adjoining  tract  that  the  boundary-line  is  at 
a  specified  place  does  not  of  itself  constitute  a  binding  agreement  that  the 
line  shall  be  there,  where  the  one  making  such  statement  was  mistaken  as  to 
its  location.5 

Where  a  dividing-line  has  been  established  before  purchases  are  made  of 
land  on  each  side  of  it,  and  the  deeds  have  been  made,  and  are  known  by  the 
parties  to  have  been  made,  with  reference  to  that  line,  they,  and  all  the  persons 
claiming  through  them,  are  bound  by  it.6  Where  a  boundary-line  was  fixed 
as  the  utmost  extent  of  a  designated  piece  of  land,  and  the  question  whether 
or  not  it  was  bounded  by  high-  or  low-water  mark  depended  on  the  date  of 
that  conveyance,  which  was  not  definitely  established,  it  was  held  that  the 
boundary  fixed  by  general  repute  at  high-water  mark,  and  which  has  been 
recognized  for  many  years  as  the  true  line,  will  be  adopted  by  the  courts.7 

Where  a  certain  line  was  pointed  out  to  a  purchaser  by  the  grantor  as  the 
boundary-line,  the  fact  that  an  adjoining  landowner  admitted  such  line  to  be 
the  true  boundary  does  not  estop  him  to  deny  its  location,  the  purchaser  not 
having  bought  on  his  representation.8 

Where,  in  a  contract  for  the  purchase  of  a  piece  of  land  enclosed  by  a 
fence  which  extended  beyond  the  southern  line  and  enclosed  a  strip  of  one 
and  a  half  acres,  belonging  to  a  railroad  company,  on  which  were  trees  and 
through  which  was  the  only  passage  from  the  dwelling  to  the  public  road,  and 

1  Hoffman  v.  City  of  Port  Huron  (Mich.),  Beckman  v.  Davidson  (Mass.),  39  N.  E. 
60  N.  W.  Rep.  831.  Rep.  38. 

2  Wheeler   v.  State  (Ala.),  19  So.  Rep.  ,5  Davidson  v.  Pickard  (Tex.),  37  S.  W. 
993-  Rep.  374. 

3  Smith    v.    Hamilton,    20    Mich.    433;  6  Briscoe  v.   Puckett  (Tex.),   12  S.  W. 
Joyce  v.  Williams,    26    Mich.    332,  cases  Rep.  978. 

cited  in  foot-note  to  Stoddard' s  ed.  7  Forest  R.  Lead  Co.  v.  Salem  (Mass. )r 

*  Gallagher  v.   Riley  (Tenn.),   35  S.  W.  42  N.  E.  Rep.  802. 

Rep.  451;  Scott  v.  Means  &  Russell  Iron  8  Davidson  v.  Pickard  (Tex.),  37  S.  W. 

Co.  (Ky.),  19    S.   W.   Rep.  189.     See  also  Rep.  374. 


33 l         BOUNDARIES   BY   AGREEMENT  AND    ACQUIESCENCE.     §494- 

no  information  was  given  as  to  the  location  of  the  boundary-lines,  a  court 
will  not  decree  a  specific  performance  of  the  contract  of  purchase  on  proof 
that  the  defendant  was  mistaken  as  to  a  material  fact  by  the  omission  of  the 
plaintiff  to  point  out  the  trees,  and  that  this  was  so  whether  the  omission  was 
intentional  or  otherwise. l 

Where  after  the  execution  of  a  deed,  a  controversy  arises  as  to  which 
one  of  two  branches  is  meant  by  a  clause  in  the  deed  which  states  "  thence 
with  that  line  to  a  stake  on  the  west  bank  of  the  branch,"  though  there  be 
evidence  that  the  parties  agreed  by  parol  where  the  true  boundary  ran,  it  is 
proper  for  the  court  to  refuse  to  instruct  the  jury  that  by  such  verbal  agree- 
ment the  parties  could  alter  the  boundaries  as  fixed  in  the  deed,  and  would 
be  estopped  from  disputing  the  new  location  so  agreed  upon.2 

494.  Surveyors  may  Not  Change  Boundaries  that  Parties  have  Them- 
selves Fixed. — Surveyors  are  often  called  upon  to  make  surveys  and  determine 
boundary-lines  that  have  already  been  irrevocably  settled-  by  the  parties  them- 
selves. It  is  a  waste  of  time  and  patronage  for  a  surveyor  to  undertake  such 
a  survey,  when  he  knows,  or  should  know,  that  it  cannot  avail  either  party. 
A  few  pointed  inquiries  by  the  surveyor,  when  called  upon  to  determine  a 
boundary-line,  will  reveal  the  true  state  of  affairs;  and  good  sound  advice  to 
the  disputing  parties  will,  if  they  profit  by  it,  save  them  much  trouble  and 
expense.  A  surveyor  should  know  when  he  is  working  to  some  purpose  and 
when  it  is  useless  to  undertake  a  task,  or  when,  if  undertaken,  his  determina- 
tion may  be  overruled  and  declared  unavailing  by  a  court  of  law.  Knowing 
that  his  services  are  in  vain  and  to  no  purpose,  can  he  honestly  render  them 
without  advising  his  patrons  of  the  fact  ?  By  such  a  course  he  may  sacrifice 
a  professional  engagement  to  another  who  is  not  so  conscientious  or  who  is 
less  enlightened,  but  he  will  not  be  the  loser  in  the  end.  A  conscientious, 
well-informed  engineer  or  lawyer  will  never  surfer  by  rendering  sound  advice 
to  his  client,  though  an  unscrupulous  and  ignorant  professional  man  may 
profit  by  making  the  most  out  of  alT  who  come  to  him;  and  a  good  engineer, 
who  knows  that  a  boundary  is  already  settled  in  law,  will  not  employ  his  time 
in  attempting  to  establish  a  boundary  or  survey  which  the  courts  will  not 
sustain. 

The  object  of  a  survey  is  frequently  to  establish  a  boundary  between 
coterminous  owners,  but  the  boundary  may  be  definitely  and  conclusively 
determined  by  the  adjoining  landowners  themselves,  without  assistance  of 
surveyors  and  without  recourse  to  the  courts.  A  simple  agreement  upon  any 
reasonable  line  as  the  boundary-line,  followed  by  a  possession  and  an  occupa- 
tion according  to  that  line,  may  preclude  either  party  from  ever  afterwards 
disputing  that  the  line  agreed  upon  is  the  true  boundary-line.  Courts  have 
repeatedly  refused  to  change  such  a  line,  and  surveyors  cannot  make  it  other- 

1  Campbell  v.  Durham  (Ala.),  5  So.  Rep.  2  Buckner  v.  Anderson  (N.  C.),  16  S.  E. 

507  [1889].  Rep.  424. 


§495-  OPERATIONS  PRELIMINARY    TO    CONSTRUCTION.  332 

wise.  The  parties  themselves  could  perhaps  mutually  agree  to  rescind  the 
agreement  and  submit  it  to  a  surveyor  or  to  the  court,  but  one  of  them  could 
not.  The  agreement  need  not  be  under  seal  or  in  writing  even ; l  but  a 
simple  parol  agreement  accompanied  by  possession  thereto  will  suffice.  Such 
agreements  are  not,  therefore,  within  the  statute  of  frauds,2  because  they  are 
not  considered  as  extending  to  titles.  They  do  not  operate  as  conveyances 
so  as  to  pass  title  from  one  to  another,  but  proceed  upon  the  theory  that  the 
true  line  of  separation  is  in  dispute  and  to  some  extent  unknown,  and  in  such 
case  the  agreement  serves  to  fix  the  line  to  which  the  title  of  each  extends.3 
It  is  not  necessary  even  that  there  should  have  been  a  previous  dispute  about 
the  line  to  give  validity  to  such  an  agreement.4 

Where  title  by  adverse  possession  is  complete,  it  is  not  affected  by  a 
parol  promise  of  the  person  holding  the  title  to  join  with  an  adjacent  owner 
in  a  survey  to  determine  the  true  line  between  their  respective  lands.5 

495,  The  Agreement  and  Acquiescence  does  Not  Effect  a  Conveyance.* 
— Land  cannot  be  granted  except  by  written  instrument  duly  signed,  sealed, 
acknowledged,  and  recorded;  and  therefore  tenants-in-common  of  an  estate 
cannot  terminate  the  unity  of  their  possession,  or  create  a  right  in  the  nature 
of  an  easement,  by  a  parol  agreement  for  the  partition  of  lands. 

It  seems  a  parol  partition  may  be  made  by  such  co-owners,  provided  each 
party  takes  and  retains  exclusive  possession  of  the  portion  allotted  to  him 
for  the  period  required  by  the  statute  of  limitations  to  give  title  to  adverse 
possession.  6f  However,  this  device  cannot  be  resorted  to  to  convey  land,  and 
thus  avoid  the  requirements  of  the  statute  to  convey  under  seal  and  record 
the  conveyance;  and  if  the  true  line  is  known,  then  any  change  in  the 
boundary-line  which  requires  the  transfer  of  any  portion  of  the  land  on  one 
side  of  the  line  from  the  one  to  the  other  must  be  in  writing  and  according 
to  the  manner  prescribed  by  law,  to  be  valid.7 

Adjoining  owners  need  not  have  title  in  fee-simple  to  become  a  party  to 
an  agreement  as  to  boundaries,  but  possession  and  assertion  of  ownership 
under  a  contract  to  purchase  are  sufficient  to  constitute  the  occupant  an 
adjoining  owner  for  the  purpose,  and  to  enable  him  to  make  a  valid  agreement 
for  the  establishment  of  division-lines.8  The  contract  is  founded  upon 
mutual  promises  and  concessions,  and  will  be  upheld  the  same  as  any  con- 

1  White  -v.  Spreckles,  75  Cal.  610  [1888];  604  [1888];  Silverer  v.  Hansen  (Cal.),  20 
Movie  v.  Connolly,  50  Cal.  295  [1875].  Pac.  Rep.  136  [1889]. 

2  Ferguson    v.    Crick    (Ky.),   23    S.   W.  5  Lamoreaux    v.    Creveling    (Mich.),  61 
Rep.  668;  semblt,  Brown  v.  Bailey  (Pa.),  N.  W.  Rep.  783. 

28  Atl.  Rep.  245.  6  Taylor     v.    Millard.    118    N.    Y.    244 

3  Whiter.  Spreckles,  75  Cal.  610  [1888].        [1890]. 

See  Helm  v.  Wilson,  76  Cal.  476;  Gwynn  7  Jenkins  v.  Trager,  40  Fed.  Rep.  726. 

v.   Swartz,  40  Alb.  L.  J.   374   [1889],  and          8  Silverer    v.    Hansen    (Cal.),    20    Pac. 

cases  cited.  Rep.  136  [1889]. 
*Helm    v.  Wilson  (Cal.),  18  Pac.  Rep. 

*See  Sees.  41-50,  supra.  \  But  see  Sec.  516,  infra. 


333         BOUNDARIES   BY  AGREEMENT  AND    ACQUIESCENCE.     §  49/. 

tract.1  Not  being  in  writing  it  cannot  convey  any  direct  interest  or  title  in 
land,  nor  can  title  to  land  be  established  by  parol  evidence  of  a  verbal  agree- 
ment establishing  boundaries  between  coterminous  owners.2 

Only  those  landowners  (their  heirs,  successors,  or  assigns)  who  are  parties- 
to  the  agreement  are  bound  by  the  agreement,3  and  it  is  incompetent  to 
prove  that  an  adjoining  landowner  who  claims  under  the  same  grant  does  not 
elaim  beyond  the  line  in  controversy,  if  none  of  the  parties  claim  through  him 
and  he  is  not  interested  in  the  suit.4 

496,  Parol  Agreements  to  Settle  Disputed  Boundaries, — It  is  quite  well 
settled  by  decisions  that  where  the  owners  of  adjoining  lots  of  land  agree  upon 
and  establish  a  division-line  between  them  by  express  parol  agreement,  and. 
their  agreement  is  immediately  executed,  and  is  accompanied  by  actual  pos- 
session according  to  such  line,  the  agreement  is  binding  and  conclusive,  and 

>such  division-line  may  not  be  disturbed  though  it  may  afterwards  appear  that 
it  is  not  the  true  line  according  to  the  paper  title.5  * 

497.  Proof  of  Agreement  and  Acquiescence. — Some  cases  hold  that  an 
agreement  must  be  shown  by  a  preponderance  of  evidence,  and  that  the  fact 
that  the   land   was  occupied   according    to   the  agreement   by   acquiescence 
merely  is  not  sufficient  to  establish  it.6     If  no  express  agreement  is  shown, 
long  acquiescence  by  one  proprietor  in  the  line  assumed  by  the  other  is 
evidence  from  which  an  agreement  may  be  inferred.7     Acquiescence  for  ten 
years  by  an  adjoining  proprietor  in  a  boundary  established  by  the  other  is- 
evidence,  at  least,  of  a  parol  argeement  so  fixing  the  boundary-line.8 

Whether  or  not  a  person  who  stands  by  and  sees  a  division-line  rum 
between  his  land  and  the  land  of  another  without  making  any  objection; 
thereby  assents  to  it,9  or  whether  or  not  the  boundary-line  was  established 
by  acquiescence,  is  sometimes  held  a  question  for  the  jury.10 

A  Missouri  case  holds  that  direct  evidence  of  the  agreement  is  not  neces- 
sary, but  that  it  may  be  shown  by  facts  and  circumstances,  including  long" 
acquiescence  and  recognition. n 

1  Finley  v.   Funk  (Kan.),  12  Pac.  Rep.  Hildebrandt  (Mich.),  68  N.  W.  Rep.  145. 
15  [1887].  7  Kellogg  v.  Smith,  7  Gush.  375;  Jones 

2  Presnell  v.  Garrison  (N.  C.),  29  S.  E.  v.  Smith,  64  N.   Y.   180  [1876].     But  see- 
Rep.  839  [1898].  Heinz  v.  Cramer  (Iowa),  51  N.  W.  Rep. 

3  Donaldson   v.    Rail  (Tex.),  37    S.  W.  173,  which  held  that  a  mere  pointing  out 
Rep.  16.  of  boundaries  was  not  sufficient.     And  see 

4  Bailey  v.  Baker  (Tex.),  42  S.  W.  Rep.  Coleman  v.  Drane  (Mo.),  22  S.  W.  Rep. 
124.  801. 

5Voight   v.   Raby  (Va.),  20  S.  E.  Rep.  8Gwynn  v.  Schwartz,  40  Alb.  L.  J.  374 

824;  Kellogg  v.  Smith,  7  Gush.  (Mass.)  [1889]. 
375.  9  Wheeler   v.  State  (Ala.),  19  So.  Rep. 

6  St.   Bede    College    v.   Weber,  168  111.  993. 

324;    Heinz    v.   Cramer  (Iowa),  51   N.  W.  10Manistee     Mfg.      Co.     v.     Cogswell- 
Rep.    173;    Iverson  v.   Swan  (Mass.),   48  (Mich.),  61  N.  W.  Rep.    884. 
N.    E.   Rep.   282;  Lecomte    v.   Toudouze  u  Ernsting  z/.Gleason  (Mo.  Sup.),  39  S. 
(Tex.),   17  S.   W.    Rep.    1047;    Horton  v.  W.  Rep.  70. 
Brown  (Ind.),  29  N.  E.  Rep.  414;  Dauer  v. 

*  See  Sec.  492,  supra. 


§  498'          OPERATIONS   PRELIMINARY    TO    CONSTRUCTION.  334 

A  boundary-line  may  be  established  by  agreement  or  by  acquiescence  in 
and  acceptance  and  recognition  of  a  line  as  a  boundary. 1 

498.  Agreements  in  Regard  to  Boundaries  Not  in  Dispute. — In  some 
cases  it  is  also  held  that  there  must  have  been  a  dispute  in  regard  to  the  line.2 
If  there  has  not  been  sufficient  adverse  possession  (for  the  full  statutory  period) 
to  make  a  title,  the  decisions  depend  on  the  force  of  the  parol  agreement  and 
on  the  occupation  of  the  land  according  to  such  agreement. 

An  agreement  fixing  upon  a  permanent  line  when  both  parties  are  ignorant 
of  the  true  line,  followed  by  possession  in  accordance  therewith,  will  bind  the 
parties  and  persons  claiming  under  them.3  It  has  been  held  not  binding  on 
subsequent  purchasers  if  it  were  an  oral  agreement  and  changed  the  legal 
construction  of  the  title-deed.4  When,  however,  the  parties  have  attempted 
to  survey  and  mark  the  true  division-line,  and  in  doing  so  have  made  a  mis- 
take, there  being  no  dispute  in  regard  to  it,  neither  they  nor  those  claiming 
under  them  are  stopped  from  claiming  to  the  true  line.5  The  same  was  held 
when  one  of  the  landowners  had  built  a  fence  on  what  he  supposed  to  be  the 
true  boundary-line  without  any  agreement.6 

The  acquiescence  or  admission  of  the  owner  of  land,  made  under  a  mis- 
take as  to  his  rights,  will  neither  estop  nor  prejudice  him  from  subsequently 
enlarging  his  possession  to  the  limits  of  his  deed,  provided  no  actual  adverse 
possession  has  intervened  to  defeat  his  title. 7 

The  rule  will  not  fix  the  boundary  if  it  afterwards  appears  that  the  adjust- 
ment is  not  in  accordance  with  the  true  paper  title,  where  the  boundary  is 
clearly  located  by  the  deed,  and  the  grantee  either  through  mistake  or  fraud 
has  not  received  a  conveyance  of  the  full  quantity  of  the  land  bargained  for.8 

499.  Parties  and  Grantees  may  be  Bound  by  Agreements. — The  fact  that 
a  description  refers  to  monuments  not  actually  in  existence  at  the  time,  but 
to  be  erected  by  the  parties,  does  not  render  the  conveyance  void  if  the  parties 
have   since  been   upon  the  land   and   deliberately  erected  the  monuments. 
They  will  be  bound  by  them  as  if  they  had  been  erected  before  the  deed  was 
made,  and  it  is  immaterial  that  the  monuments  so  erected  do  give  one  party 

1  Wardlow     v.     Harmon     (Tex.      Civ.  904;  Chadwell  v.  Chadwell  (Term.),  23  S. 

App.),  45  S.  W.  Rep.  828  [1898].  W.    Rep.    973;  Sherman   v.   State  (Ala.), 

2Gayhart    v.    Cornett    (Ky.),  42  S.  W.  17  So.  Rep.  103. 

Rep     730    [1897];    St.    Bede    College    v.  4  Shaffer   v.    Hahn  (N.    C.),    15  S.    E. 

Weber,  supra;  sernble,  Teass  v.  St.  Albans  Rep.  1033.. 

(W.  Va.),  17  S.  E.  Rep.  400.  5  Hatfield  v.  Workman  (W.  Va.)    14  S. 

3Ernsting  v.  Gleason  (Mo.),  39    S.  W.  E.   Rep.  153.     But  see  Lecomte    v.   Tou- 

Rep.   70,  Watrous  v.  Morrison  (Fla),  14  douze  (Tex.),  17  S.  W.  Rep.  1047. 

So.  Rep.  805;  Voight   v.    Raby   (Va.),  20  6Iverson  v.    Swan    (Mass.),   48   N.  E. 

S.  E.  Rep.  824;  Benson   v.  Daly    (Neb.),  Rep.    282;  White   v.    Spreckles,   75    Cal. 

56  N.  W.  Rep.  788;  Sebastian  v.  Keeton  610  [1888]. 

(Ky.),  29  S.  W.  Rep.  23;  Patten  v.  Find-  7  White  v.  Ward  (W.  Va.),  148.  E.  Rep. 

ley  (Sup.),  18  N.  V.  Supp.  683;  Lecomte  22. 

v.  Toudouze  (Tex.),  17  S.  W.  Rep.  1047;  8  Delong  v.  Baldwin  (Mich.),  69  N.  W. 

Carstarphen  v.  Holt  (Ga.),  23  S.  E.  Rep.  Rep.  831. 


335         BOUNDARIES  BY  AGREEMENT  AND    ACQUIESCENCE.     §499. 

more  than  the  quantity  described  in  the  deed,1  or  do  not  comport  with  thi 
lines  specified  in  the  deed.2 

If  a  grantor  has  agreed  to  a  certain  fence  as  the  bounding-line,  thoug 
located  and  built  after  the  conveyance,  and  he  has  acquiesced  therein,  and 
subsequently  transfers  his  holdings,  describing  the  line  as  bounded  by  the 
land  of  the  adjoining  party  or  by  the  line  bounding  his  lot,  it  will  confine  the 
transferee  and  his  subsequent  grantees  to  the  fence  agreed  upon  and  acquiesced 
in  even  though  it  does  not  conform  to  the  original  line  as  described  in  the 
deeds.3 

This  has  been  held  true  even  when  the  acquiescence  has  not  been  for  the 
prescriptive  or  statutory  period  required  by  law  to  secure  title  by  adverse 
possession.4 

The  line  so  established  is  not  only  binding  upon  the  parties  alone,  but 
upon  their  heirs  and  assigns  and  all  others  claiming  under  them,  even  though 
it  does  not  agree  exactly  with  the  metes  and  bounds  called  for  in  the  deeds.5 

The  dividing-line  must  have  been  acquiesced  in  by  the  parties  with  knowl- 
edge of  the  facts  of  its  situation  and  marking;  but  it  need  not  appear  that 
they  knew  of  the  terms,  or  even  existence,  of  the  distribution  which  first 
divided  their  land.6  In  such  cases  the  party  is  prevented  from  disputing  and 
denying  the  boundary-line  adopted,  under  the  doctrine  of  estoppel,  which 
requires  that  there  should  have  been  actual,  constructive,  or  implied  knowl- 
edge on  the  part  of  the  party  estopped,  and  ignorance  of  the  other  acting  upon 
the  incorrect  settlement,  to  estop  the  former  from  asserting  his  claim  within 
the  period  of  limitation.7  It  makes  no  difference  that  the  settlement  is  in 
writing  if  it  does  not  amount  to  a  conveyance.8  A  party  may  be  estopped  on 
the  ground  that  he  should  have  known  the  correct  line.9 

There  is  no  estoppel  unless  there  has  been  an  actual  or  implied  agree- 
ment.10 A  mere  survey  by  adjoining  owners  without  any  agreement  creates 
no  estoppel;  n  but  a  survey  and  marking  of  lines  may  estop  the  party  making 
it.12  A  verbal  agreement  made  with  knowledge  of  the  facts  and  acted  upon  is 
sufficient.13 

In  Wisconsin  there  is  no  estoppel  with  regard  to  boundaries  if  the  true 
line  can  be  ascertained  by  the  survey.14  The  estoppel  as  to  boundaries  where 

kerned  v.  Merrill,  2  N.  H.  197.  Miss.   120;  Kirchner  v.  Miller,   39  N.  J. 

2  Makepeace  v.  Bancroft,  12  Mass.  469.  Eq.  355;    Raynor    v.  Timerson,  51   Barb. 

3Knowles   v.  Toothaker,    58    Me.    172;  (N.  Y.)  517;  Reed  v.  McCourt,  35  N.  Y. 

Anderson    v.  Jackson    (Tex.),    13    S.  W.  113;   Hass  v.  Plantz,  56  Wis.  105. 

Rep.  30.  8  Bradbury  v.  Corry,  59  Me.  494. 

*  Emery  v.  Fowler,  38  Me.  102.  9  Greene  v.  Smith,  57  Vt.  268;-Louks  v. 

5Culbertson  v.  Duncan   (Pa.),    13  Atl.  Kenniston,  50  Vt.  116. 

Rep.    966    [1888];    Sheldon    v.    Atkinson  10  Chapman  v.  Crooks,  41  Mich.  595, 

(Kan.),  16  Pac.  Rep.  68  [1888].  "Spring  v.  Hewston,  52  Cal.  442. 

6  Rathbun  v.  Geer,  64  Conn.  421.  12  Singleton     v.     Whiteside,     5    Yerg. 

7  Davenport    v.    Tarpin,    43    Cal.    598;  (Tenn.),  36. 

Pitcher  v.  Dove,  99  Ind    175;  Lemmon  v.  13  Keer  v.  Hitt,  75  111.  51. 

Hartrook,  80  Mo.  13;  Evans  v.  Miller,  58  u  Hartung  v.  Witte,  59  Wis.  285. 


§500.  OPERATIONS  PRELIMINARY    TO    CONSTRUCTION.  336 

there  has  been  no  conveyance  does  not  operate  to  preclude  a  party  from 
claiming  under  rights  subsequently  acquired. l 

The  estoppel  should  be  pleaded  or  evidence  of  the  settlement  of  the 
boundary  between  the  parties  may  be  refused.2  In  any  case,  if  the  estoppel 
be  pleaded,  it  should  be  pleaded  with  certainty,  and  enough  should  be  given 
to  show  clearly  the  facts  upon  which  the  estoppel  is  to  be  founded.  If  there 
has  been  no  opportunity  to  plead  the  facts,  they  may  be  available  as  an 
estoppel.3 

500.  Acquiescence   and   Occupation   Required  for   What   Period. — No 
particular  time  appears  to  have  been  settled  as  necessary  during  which  the 
occupancy,  after  mutual  agreement,  should  have  continued;  and  the  length 
of  time  has  been  different  in  the  different  cases.      It  has  been  held  that  the 
rule  may  be  regarded  as  well  settled,  in  a  number  of  states  at  least  (Illinois, 
Michigan,  Massachusetts,  Maine,  New  Hampshire),  that  the  period  need  not 
be  equal  to  the  full  period  prescribed  by  the  statute  of  limitations.4     This  rule 
seems  to  apply  equally  to  agreements  between  governments  and  between  indi- 
viduals.5    Some  periods  which  have  been  held  sufficient  to  preclude  parties 
to  such  agreements  are  here  collected  to  show  the  uncertain  condition  of  the 
law. 

501.  Length  of  Time  Required  to  Occupy  and  Acquiesce. — Parol  assent 
by  one  of  two  adjoining  owners  to  the  location  of  a  boundary-fence  between 
them,  and  the  actual  erection  of  the  fence  by  the  other  in  accordance  with 
such  assent,  followed  by  mutual  occupation  and  acquiescence  for  a  long  time, 
will  preclude  the  parties  from  denying  it  to  be  the  true  line.6     What  is  meant 
in  this  case  by  occupation  and  acquiescence  for  a  long  time  is  not  definitely 
settled  in  the  decisions. 

A  few  months  was  held  not  sufficient  to  change  the  true  line,  or  to  pre- 
clude the  assenting  party  from  asserting  his  rights  in  accordance  with  the  true 
line.  Such  an  assent  has  been  declared  at  most  to  be  but  a  license,  so  as  to 
prevent  an  action  of  trespass  until  revoked,  which  revocation  may  be  made 
at  any  time  before  the  period  mentioned,  as  a  long  time  has  elapsed.7  Some- 

1  Donaldson    v.   Hibner,    55    Mo.    492;  Corp.,  5  Mete.  478;  Moyle   v.  Connolly, 
Dillett  v.  Kemble,  10  C.  E.  Greene,  (N.  J.)  50  Cal.  295  [1875] ;  Smith  v.  Hamilton,  20 
66.  Mich.    433    [1870];    Beardsley    v.    Crane 

2  Knudson  v.  Omanson  (Utah),  37  Pac.  (Minn.),  54  N.  W.   Rep.   740;    Benson  v. 
Rep.  250.  Daly  (Neb.),  56  N.  W.   Rep.   788;   White 

3  Bigelow    on    Estoppel    (6th  ed.),  671,  v.   Peabody  (Mich.),  64  N.  W.  Rep.  41; 
and  cases  cited.  Lowndes  v.  Wicks  (Conn.),  36  Atl.  Rep. 

4  St.  Bede  Colleges/.  Weber,  168  111.  324  1072;  Elmore  v.  Davis  (S.  C.),  26   S.  E. 
[1897];  McNamara  v.  Seaton,  32  111.   500  Rep.  680;  Tyler's  Law  of  Boundaries  334, 
[1876];  Yates  v.  Shaw,  24  111.  367;  Bauer  335. 

v.   Gottmanhausen,  65   111.  499.     But  see  5  Jenkins  v.  Trager,  40  Fed.  Rep.  726. 

Carleton    v.    Reddington,    i    Fost.    291;  6  Reed    v.    McCourt.    41     N.     Y.     435 

Fahey  v.  Marsh,  40  Mich.  236  [1879],  anci  [1869];    Lowndes    v.   Wicks    (Conn.),    36 

many  cases  cited  by  counsel;  Crowell  v.  Atl.  Rep.  1072. 

Manges,  2   Gilm.  419;   Tolman  v.  Spar-  7  James,  J.,  in  Reed  v.  McCourt,  41  N. 

hawk,   5    Mete.    469;    Brewer   v.    R.    R.  Y.  435  [1869]. 


337         BOUNDARIES  BY  AGREEMENT  AND   ACQUIESCENCE.     §  5OI. 

thing  more  than  a  few  years'  occupation  is  necessary  to  confer  title  and  estop 
the  party  who  has  merely  assented. l  A  period  of  four  or  five  years  was  held 
insufficient;2  as  also  eight  ye'ars,  and  even  eleven  years.8  In  New  York  it 
was  held  that  scarcely  less  than  twenty  years'  acquiescence  and  mutual  occu- 
pation would  conclude  the  parties4  and  prevent  their  denying  it  to  be  the 
true  line.5 

This  it  is  submitted  is  good  law.  A  mere  acquiescence  in  a  boundary  for 
any  length  of  time  less  than  the  full  statutory  period  of  limitations  should  not 
preclude  the  owner  from  asserting  the  true  boundary.6  The  decisions  of  the 
New  York  courts  are  founded  upon  the  Code  of  Civil  Procedure,  §  368,  which 
provides  that,  "  In  an  action  to  recover  real  property,  .  .  .  the  person  who 
establishes  a  legal  title  to  the  premises  is  presumed  to  have  been  possessed 
thereof  within  the  time  required  by  law,  and  the  occupation  of  the  premises 
by  another  person  is  deemed  to  have  been  under  and  in  subordination  to  the 
legal  title,  unless  the  premises  have  been  held  and  possessed  adversely  to  the 
legal  title  for  twenty  years  before  the  commencement  of  the  action. ' '  7 

Without  an  agreement  between  the  parties  there  can  be  no  doubt  but  that 
the  acquiescence  and  occupation  must  have  been  for  the  full  statutory  period.8 
An  instruction  "  that  acquiescence  in  a  line,  without  an  agreement  as  to  its 
correctness,  does  not  bind  a  party"  unless  extending  for  more  than  twenty 
years,  is  not  misleading  as  tending  to  tell  the  jury  that  parties  could  not  settle 
a  disputed  line  without  an  agreement  that  it  was  the  correct  line.9 

The  maintenance  by  owners  of  adjoining  lands  of  a  line-fence  up  to  which 
each  claims  and  occupies  is  a  concession  by  each  of  the  open  and  adverse 
possession  by  the  other  of  that  which  is  on  his  side  of  such  fence,  which,  after 
twenty-one  years,  will  give  title.10 

The  agreement  and  acquiescence  should  be  clearly  shown,  and  it  should 
be  executed  or  concluded.  If  in  an  action  of  ejectment  an  order  be  entered 
by  consent  that  a  certain  line  described  is  the  true  line,  and  that  the  surveyor 
should  go  on  the  land  and  establish  it,  and  the  order  is  never  carried  into 

1  Kipp  v.    Norton,    12   Wend.    127,   and  Rep.    831:  Nolan  v.  Harned  (N.  Y.),   13 
cases  cited;  Stuyvesant  v,  Dunham,  9  111.  App.   Div.  155.     See  Butler  v.   Vicksburg 
61;  Baldwin  v.  Brown,  16  N.  Y.  363.   See  (Miss.),   17    So.   Rep.  605.     Accord,  Doo- 
Lowndes  v.  Wicks  (Conn.),  36  Atl.    Rep.  little  v.  Bailey  (la.),  52  N.  W.  Rep.   337; 
1072.  Omensetter  v.    Kemper,  6  Pa.  Super.  Ct. 

2  Jackson  v.  Douglass,  8  111.  367.  Rep.  309  [1897];  Tritt  v.  Hoover  (Mich.), 

3  Adams  v.  Haskell,  16  Wend.  285;  Reed  74  N.  W.    Rep.    177   [1898];   Dyer  v.  El- 
v.  McCourt,  41  N.  Y.  435,  and  cases  cited.  dridge  (Ind.),  36  N.  E.  Rep.  522. 

4  Reed  v.  McCourt,  41  N.  Y.  435.  7  Clark  v.  Davis  (Super.  N.  Y.),   19    N. 
5Stuyvesant    v.     Dunham.    9     111.    61;       Y.  Supp.  191,  28  Abb.   N.  C.  135;  semble, 

Smith  v.  Bullock,  16  Vt.  592  [1844].  Kennedy  v.  Erdman    (Pa.),    28  Atl.  Rep. 

6  Hinckley    v.    Grouse,    125    N.  Y.   730;  643. 

Pearsall  v.  Westcott,  51  N.  Y.  Supp.  663  8  Beardsley  v.  Crane  (Minn.),  54  N.  W. 

[1898!;  Clark  v.  Davis  (Super.  Ct.),  19  N.  Rep.  740. 

Y.  Supp.  191,  28  Abb.  N.  C.  135;  Williams  9  Henderson   v.   Dennis,     177    111.    547 

v.    Schantz  (Iowa),  55  N.  W.  Rep.  202,  ten  [1898]. 

years;  Welton  v.  Poynter  (Wis.),  71  N.W.  10Reiter   v.    Mcjunkin    (Pa.    Sup.),  33 

'Rep.    597;  Delong    v.   Baldwin,  69  N.  W.  Atl.  Rep.  1012. 


§  50C.  OPERATIONS   PRELIMINARY   TO    CONSTRUCTION.  338 

effect,  and  the  case  is  dismissed  without  any  line  being  established,  the  parties 
remaining  in  possession  as  they  were  before,  the  agreement  will  be  abandoned, 
and  the  order  will  not  be  conclusive  as  to  the  rights  of  the  parties.1 

If,  where  the  fence  is  removed  from  the  line  claimed  by  plaintiff  and  is 
rebuilt  on  the  boundary-line  as  claimed  by  the  defendant,  the  plaintiff  stated 
that  he  would  have  a  resurvey  to  determine  the  boundary,  and  would  not 
abide  by  the  survey  which  defendant  caused  to  be  made,  the  plaintiff  is  not 
precluded  from  setting  up  a  claim  to  the  land  between  the  disputed  boundary- 
lines  by  adverse  possession.2 

502.  Period  of  Occupation  and  Acquiescence  Dependent  on  Express 
Agreement. — The  difference  in  the  lengths  of  periods  of  occupation  required 
to  establish  a  boundary  is  believed  to  be  largely  due  to  the  proof  on  the  one 
hand  of  an  actual  agreement,  and  on  the  other  of  mere  assent  and  occupation, 
with  no  evidence  whatever  of  an  agreement.  Greater  lengths  of  time  would 
naturally  and  reasonably  be  required  to  establish  an  agreement  by  evidence  of 
occupation  than  if  the  agreement  was  proven  independent  of  the  occupation 
by  a  written  instrument  or  by  witnesses.  Therefore  a  case  where  direct 
evidence  or  proof  of  assent  is  furnished  would  probably  require  less  time  to 
establish  a  boundary  than  where  there  was  no  agreement  or  assent  proven, 
and  more  time  than  where  a  contract  had  been  entered  into.  Such  a  rule 
would  require  three  different  periods  to  establish  three  different  cases,  with 
different  facts  and  circumstances. 

This  is  an  unsatisfactory  condition  of  the  law  and  leaves  the  matter  in  a 
very  unsettled  condition.  A  New  York  judge  concluded  that  "The  better 
opinion  is  that  the  consideration  mentioned  in  the  cases  must  at  least  equal 
the  length  of  time  prescribed  by  the  statute  of  limitations  to  bar  a  right  of 
entry."  The  period  as  established  in  the  older  states  is  usually  twenty  or 
twenty-one  years,  but  it  varies  in  the  different  states,  from  only  five  in  Cali- 
fornia to  twenty-one  in  Pennsylvania.  The  period  is  usually  the  same  as  is 
required  to  acquire  title  to  land,  or  the  right  to  an  easement,  by  adverse  pos- 
session or  by  prescription. 

The  length  of  time  which  must  elapse  before  an  agreement  fixing  a 
division-line  can  be  inferred  from  acquiescence  alone  is  something  about  which 
there  has  been  much  speculation  and  controversy.  No  clear  and  distinct 
conclusion  has  been  reached,  but,  as  Judge  Rhodes  of  California  said  in 
delivering  the  opinion  of  the  court:  "  The  better  opinion  is  that  the  consider- 
able time  mentioned  in  the  cases  must  at  least  equal  the  length  of  time 
prescribed  by  the  statute  of  limitations  to  bar  a  right  of  entry"  (twenty  years 
usually).3 

1  Four-mile  L.  &  C.  Co.  v.  Gibson  (Ky.),  son  v.  Freer,  17  Johns.  29;  McCormick  v. 
49  S.  W.  Rep.  954  [1899].  Barnum,  10  Wend.  104;  Dibbles.  Rogers, 

2  Van    Der    Groef  v.  Jones  (Mich.),  65  13   Wend.    536;  Adams   v.    Rockwell,    16 
N.  W.  Rep.  602.  Wend.    285;    Van    Wyck    v.  Wright,    18 

3  Jackson  v.  Ogden,  7  Johns.  238;  Jack-  Wend.    57;    Boyd's   Lessee  v.  Graves,  4 


339        BOUNDARIES  BY  AGREEMENT  AND   ACQUIESCENCE.     §  5O2. 

A  Minnesota  case  makes  one  of  three  alternative  conditions  essential, 
viz.:  where  there  is  no  doubt  as  to  how  premises  shall  be  located  according 
to  certain  and  known  boundaries  described  in  a  deed,  in  order  to  establish  a 
practical  location,  different  therefrom,,  which  shall  deprive  the  party  claiming 
under  the  deed  of  his  legal  rights,  there  must  be  a  location  which  has  been 
acquiesced  in  for  sufficient  time  to  bar  a  right  of  entry  under  the  statute  of 
limitations;  or  the  erroneous  line  must  have  been  agreed  upon  between  the 
parties  claiming  the  land  on  both  sides,  and  afterwards  acquiesced  in  for  a 
considerable  time;  or  the  party  whose  right  is  to  be  barred  must  have  so 
conducted  himself  as  to  be  estopped  from  ascertaining  the  true  line. x 

The  decisions  do  not  indicate  in  what  way  acquiescence  by  one  adjoining 
proprietor  in  a  division  fixed  by  another  adjoining  proprietor  is  to  be  proven. 
It  is  clear  that  one  mode  of  acquiescence  is  by  actual  occupation  and  cultiva- 
tion up  to  such  line  so  fixed  without  objection  by  the  other  adjoining  owner. 
This  is  not  the  only  mode  by  which  this  acquiescence  can  be  shown.  If  it 
were,  all  these  decisions  and  this  controversy  would  be  idle,  for  the  party 
cultivating  up  to  a  line  so  fixed  would  acquire  this  land  so  claimed  and 
cultivated  by  adverse  possession.  This  acquiescence  in  a  boundary-line  which 
has  been  fixed  and  marked  can  be  proved  by  any  evidence  that  would  satisfy  a 
jury  that  such  a  division-line  had  been  accepted  by  both  parties;  for  example, 
by  the  cutting  of  timber  habitually  up  to  such  division-line  by  one  party  with 
the  knowledge  of  the  other,  who,  knowing  by  these  acts  that  the  first  party 
claims  to  this  marked  line  as  a  division-line,  makes  no  objection  to  such 
cutting.2 

Mere  occupancy  of  the  land  of  another  up  to  a  fence  which  incloses  it 
with  the  land  of  the  occupant,  believing  such  fence  to  be  on  the  true 
boundary-line  between  the  latter  and  the  land  of  such  other,  without  any 
claim  of  ownership  up  to  the  fence,  or  agreement  that  such  fence  or  line 
should  be  the  dividing-line,  does  not  constitute  adverse  possession.3 

However,  when  one  has  held  possession  of  land  for  over  twenty  years, 
claiming  up  to  a  certain  fence,  which  was  supposed  to  be  on  the  dividing- 
line,  he  acquires  title  by  adverse  possession  even  though  he  claimed  to  the 
fence  only  because  he  thought  it  was  the  true  line.4 

Proof  that  the  adjoining  owners  established  a  dividing-line,  as  by  the 
building  of  a  wall  or  fence  by  both  parties,  may  be  good  evidence  of  an  agree- 
ment, and  of  adverse  possession,  which  would  change  the  rule.5 

Wheat.   513.     And  see  Jones  v.  Smith,  64  Rep.    550;  Davis    v.    Caldwell  (Ala.),    18 

N.  Y.   180  [1876];  Culbertson  v.  Duncan  So.  Rep.  103;  Greer  v.  Powell  (la.),  56  N. 

(Pa.),  13  All.  Rep.  966  [1888],  twenty-one  W.  Rep.  440;  Taylor  v.  Fomby  (Ala.),  22 

years  ;    Walker  v.  Simpson  (Me.),  13  Atl.  So.  Rep.  910  [1897] ;  Rasdell  v.  Shumway 

Rep.  580  [1888],  twenty  years.  (Kan.  App.).  49  Pac.  Rep.  631. 

1  Beardsley  v.  Crane  (Minn.),  54  N.  W.  4  Battner  v.  Baker  (Mo.),  18  S.  W.  Rep. 
Rep.  740.  911;  Taylor  v.  Fomby  (Ala.),  22  So    Rep. 

2  W.  Va.  Sup.  Ct.  App.,  June  26,   1889;  910    [1897],       See   Watrous    v.    Morrison 


Riggs  v.  Riley  (Ind.),  15  N.  E.  Rep.  253       (Fla  ),  14  So.  Rep.  805. 

[1888].  5  Idaho  Land  Co.  v.  Parsons  (Idaho),  31 

3  Me  Williams  v.  Samuel  (Mo.),  27  S.  W.        Pac.  Rep.  791;  Pearson  v.  Dryden  (Oreg.), 


§  5°3-  OPERATIONS   PRELIMINARY    TO    CONSTRUCTION.  340 

In  conclusion  it  may  be  said  that  it  is  impossible  to  state  just  how  many 
years  of  acquiescence  in  a  dividing-line  and  occupation  thereto  are  the  least 
number  that  will  establish  that  line  irrevocably.  It  is  unquestionably 
decided  and  settled  that  acquiescence  and  occupation  for  the  full  period 
established  by  the  statute  of  limitations  will  fix  the  line,  and  preclude  the 
owners  from  ever  denying  it  afterwards.  This  is  established  by  a  long  list  of 
cases  and  has  never  been  doubted. l 

503.  Occupation  by  License  is  Not  Acquiescence  or  Proof  of  Agreement. 
— A  privilege  or  license  by  the  grantor  of  one  adjoining  owner  to  the  other 
owner,  when  applied  to  on  the  subject  of  a  division-fence,   to  "build  the 
fence  wherever  he  desired  to  build  it  "  is  not  sufficient  to  establish  the  fence 
as  a  boundary  when  it  appears  by  the  evidence  that  the  fence  was  not  built 
on  a  certain  line  of  stakes  that  the  two  owners  had  always  recognized  as  the 
true  dividing-line,  and  when  it  further  appears  that  a  surveyor  had  established 
the  same  line  of  stakes  as  the  true  line.      It  is  not  waived  by  a  subsequent 
reference  to  arbitrators  which  results  in  a  void  award.2 

However,  where  adjoining  owners  have  adopted  a  division-line,  and  each 
has  taken  possession  of  his  respective  tract  as  of  right,  and  one  of  them  subse- 
quently, claiming  another  line  as  correct,  brings  ejectment  for  the  land 
included  between  the  two  lines,  and  defendant  sets  up  adverse  possession  as 
a  defense,  it  is  error  to  instruct  that  adverse  possession  cannot  be  based  on  a 
possession  having  its  inception  in  license.3 

504.  Acquiescence  under  a  Mistake. — If  a  continuous  and  uninterrupted 
possession  to  the  line  of  a  division-fence  under  claim  of  ownership  has  been 
unintentional  or  under  a  mistaken  belief  that  the  fence  was  on  the  correct 
line,  and  without  intention  of  claiming  beyond  the  true  line,  then  it  will  not 
give  title  nor  bar  the  adjoining  owner  from  demanding  a  correct  location  of 
the  line.4*     This  principle  is  further  stated  in  a  case  which  held  that  "  If  one 
holds  land  up  to  a  certain  boundary  as  the  true  one,  with  the  understanding, 
however,  that  he  claims  only  to  the  extent  of  his  paper  title,  he  can  never 
acquire    any  rights   further  than   the   line  called   for  in  his  'conveyance,    no 
matter  how  long  he  may  hold  to  that  boundary;  but  if  he  claims  absolutely 
and  holds  adversely  to  the  line  against  all  others,  the  line  becomes  so  estab- 
lished after  the  statutory  period  of  limitations,   even  though  his  claims  are 

43  Pac.   Rep.   166;    Whitcomb  v.   Dutton  2  Walker  v.  Simpson  (Me.),  13  Atl.  Rep. 

(Me.),  36  Atl.  Rep.  67;  Butler  v.  Drake  580  [1888].     See  Bloomington  v.  B.  Cem. 

(Minn.),  64  N.  W.  Rep.   559;    Ramsey    v.  Ass'n  (111.),  18  N.  E.  Rep.  298  [1889]. 

Ogden  (Oreg.),  31  Pac.  Rep.  778.   But  see  3  Pearson  v.  Dryden(Oreg.), 43  Pac.  Rep. 

Kurz    v.    Miller  (Wis.),    62    N.   W.   Rep.  166;  Idaho    Ld.   Co.  v.    Parsons  (Idaho), 

182.  31  Pac.  Rep.  791. 

1  White  z/.  Spreckles,  75  Cal.  610  [1888];  4  E.   Tenn.    I.   &    C.    Co.    v.    Ferguson 

Sheldon  v.  Atkinson  (Kan  ),  16  Pac.  Rep.  (Tenn.),  35  S.  W.  Rep.  900;  King  v.  Brig- 

68  [1888];  Burris  v.  Fitch  (Cal.),  18   Pac.  ham  (Oreg.),  31    Pac.  Rep.   601;  Skinker 

Rep.   864    [1888],  sixteen  years',    Dale   v.  v.  Hagsma  (Mo.),  128.  W.  Rep.  659. 
Jackson,  8  N.  Y.  Supp.  715. 

*  See  Sec  498,  supra. 


341         BOUNDARIES  BY  AGREEMENT  AND   ACQUIESCENCE.     §  504. 

based  upon  a  mistake  touching  the  survey. "  l  It  was  so  held  when  the  claim- 
ant had  stated,  on  several  occasions  after  a:u  erroneous  survey  had  been  made, 
that  he  did  not  claim  more  than  the  numbe.T  of  acres  he  had  purchased.2 

Where  one  of  two  adjoining  landowners  places  a  fence,  without  opposition 
from  the  other,  on  what  is  erroneously  supposed  by  both  to  be  the  proper 
boundary-line,  the  other  is  not  thereafter  estopped  to  set  up  the  error.3 

If  parties  agree  upon  boundary-lines,  and  buildings  or  permanent  improve- 
ments are  erected  to  conform  to  those  lines,  they  may  not  afterwards  be 
changed  to  the  prejudice  and  damage  of  either  party.4  This  is  under  the 
doctrine  of  estoppel.* 

1  Mayor's    Heirs    v.  Rice,    57    Mo.  485  (Mo.),    39   S.  W.    Rep.    454;    Rasdell    v. 

[1874].  Accord,  Smitzgabel  v.  Worsel-  Shumway  (Kan.),  51  Pac.  Rep.  285  [1897]. 
dine  (Utah),  16  Pac.  Rep.  400  [1888];  ^  But  see  City  of  Bloomington  v.  B.  Cem. 

Scheible   v.   Hart    (Ky.),    12  S.  W.  Rep.  Ass'n    (111.),   18    N.   E.   Rep.   298    [1889]; 

628.  Graza   v.    Brown   (Tex.),  n  S.  W.  Rep. 

2Kahl    v.    Schmidt   (Iowa),    78  N.  W.  920;  Mayor's  Heirs  v.   Rice,  57  Mo.  485 

Rep.  204  [1899].  Ll874]j  Idaho  Ld.  Co.  v.  Parsons  (Idaho), 

3  Golterman  v.  Schiermeier  (Mo.  Sup.),  31  Pac.  Rep  791. 
28  S.  W.  Rep.  616;   Roecker  v.   Haperla 

*  See  Sees.  661-670,  infra. 


CHAPTER   XXVIII. 

ADVERSE   POSSESSION.     TITLE   AND    BOUNDARIES  TO   LAND 

AFFECTED    BY   IT. 

511.  Land  Acquired  and  Boundaries  Determined  by  Adverse  Possession 

-By  early  English  law  a  person  acquired  by  long  use  the  right  to  hold  and 
enjoy  under  two  laws,  the  law  of  prescription  and  that  of  limitations.  The 
right  acquired  by  prescription  was  a  positive  right  of  ownership;  the  right 
given  by  the  statute  of  limitations  was  a  right  to  be  let  alone  in  the  quiet 
possession  of  land  so  acquired.  The  latter  barred  the  previous  owner  from 
asserting  his  rights  or  maintaining  any  suit  for  the  recovery  of  his  land.  In 
this  country  there  is  little  if  any  difference  between  the  two  as  regards  real 
property.  The  same  period  is  required  by  both,  and  the  way  consistently  and 
logically  to  apply  the  law  is  to  give  the  possessor  title  to  the  land  as  owner 
after  an  adverse  user  for  the  statutory  period. 1 

512.  Surveyor   should    Take    Cognizance   of  his   Client's   Rights, — To 
render  good  service  to  his  client  a  surveyor  will  not  merely  discover  and  locate 
the  paper  title  to  an  estate,   but  will   include  all  that  legally  and  properly 
belongs  to  it.      If,  in  making  the  survey  by  the  description  in  the  comeyance, 
he  finds  an  existing  line  that  differs  from  his  line  and  includes  more  than  's 
called  for  by  the  paper  titles,  he  should  make  inquiries  whether  a  division- 
line  has  ever  been   mutually  agreed   upon  and   established  by  the  parties  or 
their  grantors;  whether  the   line  has   ever  been  submitted  to  arbitration  and 
thus  determined,  and  how  long  it  has  existed  in  its  present  state.      Answers 
to  these  inquiries  will  enable  him  to  make  a  complete  report  and  thus  to  put 
on  record  facts  and  evidence  that  may  prove  valuable  to  the  proprietor  in 
years  to  come. 

The  subjects  of  "Agreements  and  Acquiescence  as  to  Boundaries"  and 
"  Arbitration  of  Boundaries  "  have  already  been  considered. 

In  determining  the  boundary-lines  of  land  over  which  a  proprietor  may 
assert  ownership  and  maintain  possession,  a  surveyor's  first  duty  is  to  consult 
the  records,  or  to  call  for  copies  of  the  title-deeds,  which  the  owner  generally 
has  in  his  possession  and  under  which  he  claims.  These  usually  contain 
descriptions  by  boundaries  (fixed  monuments,  courses,  and  distances)  which 

1  Langdell's  Eq.  Pleading,  §§  119-127. 

342 


343  ADVERSE   POSSESSION.  §5^4- 

are  sufficient  to  establish  the  precise  boundary-lines  of  the  estate.  While  these 
may  be  sufficient  to  locate  and  inclose  the  land  claimed  under  the  deed  or  by 
the  grant  or  devise,  yet  other  lands  may  be  owned  which  may  rightfully  and 
properly  be  included  in  the  survey. 

It  has  been  shown  how  one  owning  lands  bounded  upon  streams  and 
bodies  of  water  may  acquire  lands  by  accretion,  and  that  these  should  be 
included  in  the  survey  of  a  man's  estate.  It  is  now  proposed  to  explain  other 
conditions  and  circumstances,  the  long-continued  existence  of  which  will 
enable  a  person  to  acquire  title  to  land  formerly  held  and  claimed  by  others. 
Such  land  if  it  has  certainly  become  the  property  of  the  proprietor  should  be 
included  in  the  survey  and  included  as  part  of  the  estate,  and  a  surveyor 
should  know  with  some  reasonable  degree  of  certainty  w.hat  can  be  claimed 
and  what  may  not  be  included.  To  understand  this  fully  he  must  know  some 
of  the  reasons  for  this  peculiar  phase  of  the  law  which  permits  one  man  to  lay 
claim  to,  and  eventually  acquire,  title  to  another  man's  lands. 

513.  Brief  History  of  Rights  by  Adverse  Possession.— The  law  governing 
adverse  claims  to  land  is  the  result  of  a  desire  on  the  part  of  the  members  of 
civilized  society  to  secure  their  estates  to  themselves,  free  from  vexatious  suits 
and  controversies;  to  insure  themselves  the  quiet  and  peaceful  enjoyment  of 
their  possessions,  and  to  bury  litigation  in  the  grave  of  the  past.      The  present 
law  is  not  the  result  of  a  first  attempt,  but  is  the  outcome  of  a  number  of 
legislative  acts.      Its  history  begins  in    1275;  when  an  act  was  passed  which 
limited  suits  for  possession  of  land  to  claims  acquired  since  1189,  the  time  of 
Richard  I.      Any  man  who  had  held  possession  since  1189  had  the  title  to  the 
land.      In  1540  a  statute  was  passed  which  forbade  any  suit  or  claim  to  land 
not  held  within  sixty  years  by  the  party  himself,  his  grantor  or  predecessor 
under  whom  he  claimed.     This  statute  was  followed  in  1623  by  another  which 
reduced  the  statutory  period  to  twenty  years,  which  statute  denies  any  person 
who  may  have  had  right  and  title  to  land  to  enter  after  the  lapse  of  twenty 
years  after  the  right  accrued  to  him.      It  requires  him  to  bring  any  suit  or 
action  at  law  to  recover  the  land  within  twenty  years  after  the  title  descended 
to  him  or  cause  of  action  accrued,  and  precludes  him  from  bringing  any  action 
at  any  time  after  twenty  years.      This  period  has  been  retained  by  many  of  the 
older  states  of  this  country,  and  substantially  the  same  or  similar  statutes  have 
been  enacted.     In  the  Western  and  Southern  states  the  period  varies  from  five 
to  twenty-one  years. 

514.  Possession  as  Evidence  of  Title, — Possession  itself  is  a  species  of 
title,  of  lower  grade  it  is  true,  yet  it  is  good  as  against  all  who  cannot  show  a 
better  title,  and  by  lapse  of  time  may  become,  under  the  statute  of  limitations, 
perfect  and  indefeasible.1     This  possession  when  under  a  claim  of  ownership 
is  called  adverse  possession,  and  when  open,  adverse,  and  uninterrupted  for 
the  period  fixed  by  statute  gives  to  the  owner  so  claiming  and  holding  an 

1  McNeely  v.  Langan.  22  Ohio  St.  32. 


§515-  OPERATIONS  PRELIMINARY    TO    CONSTRUCTION.  344 

indisputable  ownership  of  the  land  so  held  and  claimed.  The  claim  of 
ownership  must  be  open,  notorious,  and  for  the  entire  period ;  it  may  not  be 
quiet,  in  secret,  or  relinquished  for  a  single  moment  during  the  whole  time. 
Possession,  ordinary  acts  asserting  ownership,  such  as  cultivation,  occupation, 
and  use,  are  sufficient  to  show  a  claim  of  ownership.  The  possession  must 
be  open  and  notorious  and  not  by  stealth;  it  must  be  adverse  to  everybody; 
it  must  be  exclusive  and  uninterrupted.  When  such  a  possession  has  con- 
tinued for  the  period  established  by  statute  (twenty  years  in  many  states)  it 
establishes  a  complete  title  to  the  lands  in  the  one  who  has  had  possession, 
which  title  cannot  be  reconveyed,  abandoned,  or  relinquished  to  the  former 
owner  except  by  a  deed,  duly  attested,  acknowledged,  and  recorded,  as 
required  by  law  in  ordinary  conveyances  of  title.1  After  the  lapse  of  the 
statutory  period  the  adverse  possession  ripens  into  a  title,  and  this  cannot  be 
waited  by  an  agreement.  It  gives  a  perfect  title,  one  that  will  satisfy  a 
guarantee  of  a  perfect  title.2 

The  law  giving  a  person  title  to  land  after  possession  for  a  certain  number 
of  years  is  a  statutory  law,  and  every  engineer  or  surveyor  must  make  himself 
acquainted  with  the  peculiarities  of  the  law  of  his  own  state.  They  do  not 
differ  much  in  general  principle.  All  are  modifications  of  the  English  statutes 
or  of  those  of  the  older  states  which  have  themselves  been  framed  after  the 
English  laws.  The  chief  differences  are  in  the  periods  required,  and  in  the 
disabilities  which  are  permitted*  to  prevent  the  operation  of  the  law.  It  is 
only  intended  to  give  here  the  general  principles  of  the  law  as  found  laid  down 
in  the  decisions  of  the  courts,  leaving  it  imperative  that  every  engineer  or 
surveyor  must  read  the  statutes  of  the  state  in  which  he  proposes  to  prac- 
tice his  profession.  What  constitutes  adverse  possession  is  a  question  of  law 
and  for  the  'court  to  say ;  whether  the  facts  and  circumstances  attending  any 
particular  case  are  sufficient  to  make  a  possession  adverse  is  a  question  for  a 
jury  under  proper  instructions  by  the  court. 

515.  Essential  Elements  of  Adverse  Possession  to  Give  Title. — Adverse 
possession  must  consist  of  six  elements,  or  coexisting  circumstances,  viz.  : 
(i)  it  must  be  adverse  and  hostile;  (2)  it  must  be  actual;  (3)  it  must  be 
visible,  open,  and  notorious;  (4)  it  must  be  exclusive;  (5)  it  must  be  con- 
tinuous and  uninterrupted;  (6)  it  must  be  under  claim  or  color  of  title  or 
right. 

51?.  Possession  must  be  Adverse  and  Hostile.  —  By  "adverse  and 
hostile  "  is  understood  that  the  possession  must  not  be  by  permission,  license, 
or  agreement  of  the  owner.  The  possession  of  a  tenant,  a  licensee,  or  one 
who  enters  land  under  contract  of  sale  is  not  adverse  or  hostile  to  the  land- 
lord or  licensor.  It  is  not  necessary  that  the  party  personally  occupy  the 

School  Dist.  v.   Benson,  31  Me.  381.  849  [1889]. 

Sfe   also    Armstrong    v.    Ristian,    5    Md.  *  Hughes  v.  Graves,  39  Vt.  359;  Faloon 

256;    schall  v.  Wins.   R.^R.,  35  Pa.  St.  v.  Simshauer  (111.),  22  N.  E.  Rep.  835. 
191;  Jones  v.  Hughes  (Pa.),  16  All.  Rep. 


345  ADVERSE   POSSES* A  AT.  §5l6. 

land.  The  possession  may  be  by  or  through  the  party's  agent,  steward,  or 
tenant,  or  under  a  contract  of  purchase.  However,  the  party  should  have 
taken  and  at  some  time  have  had  actual  possession, i  except,  it  seems,  in  case 
of  a  trust  deed.2 

No  length  of  possession  by  those  who  hold  by  permission  of  the  owner 
will  cause  limitations  to  run  against  the  title  of  the  owner;3  but  consent  of 
the  owner  of  land  to  its  occupancy  by  another  does  not  of  itself  prevent  such 
occupancy  from  being  adverse,  if  the  other  essentials  of  an  adverse  holding 
appear.4 

A  tenant  or  subtenant  must  terminate  his  tenancy  with,  or  surrender  his 
lease  to,  the  legal  owner;  to  whom  also  he  must  declare  his  adverse  possession 
or  claim.  A  denial  of  the  title  of  his  landlord  at  the  expiration  of  his  lease,3 
a  purchase  of  a  tax-title 6  and  a  claim  of  ownership  under  it,  a  surrender  of 
possession  and  subsequent  taking  adversely,7  will  set  the  statute  running  and 
form  an  adverse  possession. 

A  mere  holding  over  after  the  lease  has  expired  is  not  adverse; 8  but  a  dis- 
claimer and  notice  to  the  owner  after  the  term  has  expired  will  set  up  adverse 
title  without  surrendering  the  possession  of  the  premises,9  and  notice  of  such 
adverse  holding  need  not  be  shown  by  evidence  so  convincing  as  to  preclude 
all  doubt. 10  In  California  a  tenant  who  holds  under  one  who  is  not  the  real 
owner  will  hold  adversely  to  the  real  owner  without  a  surrender  to  his  land- 
lord and  a  reentry.11 

Generally  possession  will  have  to  be  surrendered  unless  the  disclaimer  is 
equivalent  to  a  surrender,  or  is  so  apparent  that  there  can  be  no  doubt  of  the 
tenant's  hostile  claims.12 

What  has  been  said  of  tenants  may  in  general  be  said  of  a  licensee/3  or 
of  a  trustee, 14  or  of  tenants  in  common, 13  or  of  a  life-tenant  as  against  the 

1  Wiggins  v.  Kirby  (Ala.),  17  So.  Rep.        Rep.  347. 

354;  Parks  v.  Barnett  (Ala.),  16  So.  Rep.  u  Millett    v.    Lagomarsino    (Cal.),    40 

136.  Pac.  Rep.  25. 

2  Ivy  v.  Yancey  (Mo.),  31   S.  W.  Rep.  12  Bedlow  v.  New  York  Dry-dock    Co. 
937-    "  (N.  Y.),  19  N.  E.  Rep.  800  [1889];  Vosen 

3  Long  v.  Hall  (Tenn.),  46  S.   W.  Rep.  v.  Dantel    (Mo.),    22    S.    W.     Rep.    734; 
343  [1898],  Harrison  v.    Caswell  (Sup.),  Whitney    v.    Edmunds,    94    N.    Y.    309 
45  N.  Y.  Supp.  560.  [1884]. 

4  Murphy  v.  Reynaud  (Tex.  Civ.  App.),  13  Haggard  v.  Martin  (Tex.  Civ.  App.), 
21  S.  W.  Rep.  991.  34  S.  W.  Rep.  660;  Downing  v.  Dinwid- 

5Catalino  v.  Decker,  38  Conn.  362;  die  (Mo.  Sup.),  33  S.  W.  Rep.  470;  Cole- 
Butler  v.  Bertrand  (Mich.),  56  N.  W.  man  v.  Pickett  (Sup.),  31  N.  Y.  Supp. 
Rep.  342,  a  subtenant;  Wilkins  v.  Pensa-  480;  Jacob  Tome  Inst.  v.  Crothers  (Md.), 
cola  City  Co.  (Fla.),  18  So.  Rep.  20.  40  Atl  Rep.  261  [1898]. 

6  Weichselbaum  v.  Curlett,  20  Kan.  u  Gardner  v.  Holland  (S.  C.),  19  S.  E. 

709.  Rep.  997;  Kansas  C.  Inv.  Co.  v.  Fulton 

7 1  Amer.  &  Eng.  Ency.  Law  240.  (Kans.  App.),  46  Pac.  Rep.  188;  Meacharn 

8  Learned  v.  Talmadge,  26  Barb.  (N.  v.  Bunting  (111.),  41  N.  E.  Rep.  175;  Cam- 

Y.)  444;  Shields  v.  Horbach  (Neb.),  68  eron  v.  Chicago,  M.  &  St.  P.  Ry.  Co. 

N.  W.  Rep.  524.  (Minn.),  61  N.  W.  Rep.  814. 

9Vass  v.  King  (W.  Va.),  10  S.  E.  Rep.  15  Garcia  v.  Illig  (Tex.).  37  S.  W.  Rep. 

402;  Shields  v.  Horbach  (Neb.),  68  N.  47*;  Mahill  v.  Torrence,  163  111.  277; 

W.  Rep.  524.  Pierson  vf  Conley  (Mich.),  55  N.  W.  Rep. 

10Reusens    v.  Lawson    (Va.),    21    S.  E.  387. 


§  5  1 6.  OPERATIONS  PRELIMINARY    TO    CONSTRUCTION.  346 

remainderman  entitled  to  a  reversion.1 

-If,  however,  a  trustee  holding  title  to  land  for  the  use  of  one  during  life, 
with  remainder  to  others,  to  be  ascertained  at  the  termination  of  the  life- 
estate,  allows  a  prescriptive  title  to  ripen  against  him  during  the  life-estate, 
the  remaindermen  are  also  barred.2  When  the  lessee  or  tenant  has  held 
under  a  void  lease  it  seems  that  his  holding  is  adverse.3  In  the  state  of  New 
York  by  statute  a  tenant's  possession  does  not  become  adverse  until  twenty 
years  after  he  has  ceased  to  pay  rent  or  after  the  lease  has  expired. 

One  who  enters  into  possession  under  contract  of  sale  cannot  be  adverse 
unless  his  hostility  has  been  manifest  by  pronounced  acts  brought  expressly, 
or  by  legal  implication,  to  the  vendor's  notice.4  A  purchaser  of  land  under 
a  parol  contract  who  has  paid  only  part  of  the  purchase-price  and  who  was 
put  in  possession  by  vendor  does  not  hold  adversely.5  Possession  becomes 
adverse  on  compliance  by  the  purchaser  with  all  conditions,6  including  the 
payment  of  the  purchase-price.7  However,  it  seems  that  the  possession  of 
the  purchaser  is  not  the  possession  of  the  vendor,  so  that  a  subsequent  pur- 
chaser can  have  the  benefit  of  the  time  during  which  the  earlier  purchaser 
held.  The  possession  by  the  vendor  was  held  subordinate  and  not  adverse  to 
the  purchaser.8 

Possession  by  either  husband  or  wife  under  a  void  deed  of  the  land  occu- 
pied is  not  adverse  one  to  the  other  if  they  are  living  in  marital  relations.  But 
if  the  wife  die 9  or  separate  from  the  husband,  then  it  seems  adverse  possession 
begins. 10 

Where  a  grantee  in  a  deed  erases  his  name  and  inserts  that  of  his  wife, 
with  intent  to  vest  title  in  her,  and  she  holds  the  land  as  owner  thereof,  the 
statute  of  limitations  begins  to  run  in  her  favor  during  the  life  of  her  husband, 
and  continues  uninterrupted  by  his  death. n 

As  between  parties  sustaining  parental  and  filial  relations,  the  possession 
of  land  of  the  one  by  the  other  is  presumed  to  be  permissive  and  not  adverse, 
and  to  overcome  such  presumption  there  must  be  some  open  assertion  of 
hostile  title  other  than  mere  possession,  and  knowledge  thereof  brought  home 
to  the  owner.12  The  possession  of  land  acquired  by  a  father  under  a  convey- 
ance made  to  his  infant  daughter  by  her  grandfather,  and  delivered  to  such 

Austin  v.  Brown  (W.  Va.),  17  S.  E.  6  Doe  v.  Roe  (Del.  Super.),  32  Atl.  Rep. 

Rep.  207.  391'  7  Houst  386. 

2Cushman  v.  Coleman  (Ga.),  19  S.  E.  T  Ward  v.  Cochran  (C.  C.  A.),  71  Fed. 

Rep.  46.  Rep.  127. 

3  Jones    v.   Madison  County  (Miss.),  8  8Jaff.   Ry.  Co.   v.  Ogler,   82    Tnd.  394; 
So.  Rep.  87.  McCormack  v.  Silsby  (Cal.),  22  Pac.  Rep. 

4  Kerns    v.   Dean    (Cal.),   19   Pac.  Rep.  874. 

817  [1889];    Spratt   v.   Livingston    (Fla.),  9  Berkowitz  z/.  Brown,    23   N.  Y.  Supp. 

14  So.  Rep.  160;    Roe  v.  Bundy's   Heirs  792. 

(La.),  12  So.  Rep.  759;  Clark  v.  Comford  10  Warr  v.  Honeck  (Utah),2g  Pac.  Rep. 

(La.),  12  So.  Rep.  763.  1117.    See  I  Amer.  &  Eng.  Ency.  Law  250. 

5  Gamble    v.    Hamilton    (Fla.),    1280.  u  Massey  v.  Rimmer,  69  Miss.  667. 
Rep.  229;  Bird  v.  N.  J.  &  N.Y.  R.  (Sup.),  12O'Boyle  v.  McHugh  (Minn.),69  N.W. 
38  N.  Y.  Supp.  281.  Rep.  37- 


347  ADVERSE  POSSESSION.  §5  I/- 

father, can  never  ripen  into  a  title  by  prescription;  and  if  he  conceals  the 
facts  from  her,  he  cannot  obtain  title  by  adverse  possession,  although  for 
twenty  years  after  she  became  of  age  he  retained  the  land  and  rented  it  to 
her.1 

Where  the  children  of  a  decedent  take  possession  of  his  land,  their  holding 
is  adverse  to  persons  who  claim  to  be  his  children  by  another  woman,  his 
lawful  wife,  and  that  those  in  possession  are  illegitimate.2  A  holding  by  right 
of  dower  is  not  adverse.3 

517.  Adverse  and  Hostile  Character  of  Possession  a  Question  of  Inten- 
tion.— This  element  of  hostility  to  the  true  owner  is  an  indispensable  element 
of  adverse  possession.  It  must  be  continuous  and  notorious,  and  cannot  be 
inferred,  as  the  presumption  is  in  favor  of  the  true  owner.  If  lands  are 
inclosed  by  mistake  and  claimed  by  the  party  as  his  own,  it  will  work 
a  disseisin;  but  if  a  fence  is  built  for  the  purpose  of  husbandry  and  with  no 
intention  of  building  it  on  the  true  dividing-line,  and  no  claim  is  made  to  the 
land  to  the  fence,  but  only  to  the  true  line,  wherever  that  may  be,  to  be 
subsequently  ascertained,  this  possession  is  not  adverse.  The  question  is,  did 
the  party  claim  to  the  fence  or  did  he  not  ? — a  question  of  intent. 

This  inquiry  into  the  intention  of  parties  is  a  matter  for  the  jury,  and  one 
burdened  with  difficulties.  The  natural  selfishness  of  mankind  prompts  a 
man  to  say  that  of  course  he  claimed  to  the  fence,  if  by  so  swearing  (doing) 
he  can  hold  that  which  he  otherwise  would  lose.  There  are  strong  opinions 
and  decisions  that  it  is  only  necessary  for  a  person  to  enter  and  take  posses- 
sion as  his  own,  to  take  rents  and  profits  to  himself,  and  to  manage  the 
property  as  an  owner  would  manage  his  own,  as  if  he  were  the  true  owner 
and  accountable  to  no  person. 

The  motives  of  the  possessor  cannot  be  inquired  into;  whether  he  intends 
a  wrongful  disseisin  or  whether  he  occupies  what  he  sincerely  believes  to  be 
his  own,  a  possession  for  the  statutory  period  gives  him  title.  Into  the 
recesses  of  his  mind,  his  motives  or  purposes,  his  guilt  or  innocence,  no 
inquiry  will  be  made.  It  is  the  visible  and  the  adverse  possession  with  an 
intention  to  possess  that  constitutes  its  adverse  character,  and  not  the  remote 
views  or  belief  of  the  possessor.4  The  intention  to  claim  adversely  is  an 
essential  ingredient.  It  matters  not  that  the  possessor  was  mistaken,  and  that 
had  he  been  better  informed  he  would  not  have  entered  on  the  land.  If  by 
mistake  he  has  inclosed  the  land  of  another  and  claimed  it  as  his  own  to 
certain  fixed  monuments  or  boundaries,  his  actual  and  uninterrupted  posses- 

1  Parker  v.  Salmons  (Ga.),  28  S.  E.  Rep.  Rep.  382;  Westenfelder  v.  Green  (C.  C.), 
681     [1897];      Lawrence      v.      Lawrence  76  Fed.   Rep.  925.     See,  contra,  Edwards 
(Oreg.),  12    Pac.    Rep.     186;    Jester    v.  v.  Humphreys  (Tex.),  36  S.  W.  Rep,  333, 
Francis  (Tex.),  31  S.  W.  Rep.  245.  and  Eldridge  v.  Parish  (Tex.),  25  S.  W. 

2  Westenfelder   v.     Green     (Oreg.),    34  Rep.  49,  a  homestead. 

Pac.  Rep.  .23.  *  Humphreys  v.  Hoffman,  33  Ohio  395; 

8  Robinson   v.    Allison   (Ala.),    12    So.       French  v.  Pearce,  8  Conn.  430. 


§5I7-          OPERATIONS  PRELIMINARY    TO    CONSTRUCTION.  348 

sion  as  owner  for  the  statutory  period  will  work  a  disseisin,  and  his  title  will 
be  perfect.1 

It  is  impossible  to  explain  the  invisible  motives  of  the  mind,  or  to  inquire 
whether  the  possessor  of  land  acted  under  his  best  knowledge  and  belief.  If 
one  take  possession  of  land  and  retain  it  under  claim  of  ownership,  it  does 
not  matter  whether  in  conscience  he  believes  he  was  taking  it  wrongfully  or 
rightfully;  the  question  is,  has  he  possessed  for  the  period  required,  unin- 
terruptedly and  exclusively,  under  a  claim  and  belief  of  right,  and  has  he 
appropriated  to  his  own  use,  without  account,  the  rents  and  profits  ? 

An  essential  ingredient  is  the  claim  of  right  hostile  to  the  owner.  The 
quo  animo  (intention)  with  which  the  possession  was  taken  and  held  is  the 
test.  An  inquiry  as  to  the  intention  of  the  possessor  is  therefore  essential,  in 
order  to  determine  the  nature  of  his  possession.  The  adverse  possession  must 
be  strictly  proved,  it  will  not  be  presumed.  The  presumption  is  in  favor  of 
the  owner,  that  he  holds  possession  under  the  regular  legal  title. 

Where  one  goes  into  a  house,  knowing  that  no  one  is  looking  after  the 
rent  thereof,  with  the  intention  of  keeping  it  so  long  as  he  can  do  so  without 
paying  rent,  his  possession  is  not  adverse.2  If  he  does  not  intend  to  claim 
as  his  own  a  small  tract  of  land  included  within  the  inclosure,  his  possession 
is  not  adverse.3 

What  will  prove  an  intention  to  possess  adversely,  under  claim  of  right,  is 
a  question  about  which  much  controversy  exists.  Whether  mere  possession 
is  sufficient  to  assert  the  claim  of  right,  or  whether  there  must  be  other  acts 
and  declarations,  is  not  perfectly  settled.  The  doctrine  that  exclusive  posses- 
sion, occupation,  cultivation,  etc.,  under  belief  that  the  premises  are  rightfully 
possessed,  are  not  sufficient  unless  accompanied  by  a  claim  of  title  to  the 
premises,  has  prevailed  in  some  states.  They  maintain  that  belief  alone  is 
not  sufficient,  but  that  the  claim  of  right,  asserted  and  demanded,  is  indis- 
pensable. 

Land  held  under  a  mistake  as  to  description  is  held  adversely,  and  such 
holding  gives  title  by  limitation.4  The  element  of  intention  is  important,  and 
at  the  same  time  one  almost  impossible  to  ascertain. 

Although  the  cases  setting  forth  this  doctrine  have  not  as  yet  been  over- 
ruled in  their  respective  states,  subsequent  decisions  in  Maine,  Alabama,  and 
Missouri  seem  to  have  left  but  little  authority  in  them  except  in  the  local 
jurisdiction  where  they  were  decided.5  The  decisions  stand  and  should 
have  some  consideration  in  Iowa,  Vermont,  Alabama,  Maine,  Missouri,  and 
Georgia. 

1  Levy  v.  Verga,  25  Neb.  764;  Obernalta  *  Pharis  v.  Jones  (Mo.  Sup.),  26  S.  W. 

v,    Edgar,  44   N.  W.    Rep.  82;  41  N.  W.  1032. 

Rep.  773.  *i  Amer.  &  Eng.  Ency.  Law  282. 

'Smeberg  v.  Cunningham  (Mich.),  56  5 Gray's  Real  Property  Cases  85,  86. 
N.  W.  Rep.  73. 


349  ADVERSE  POSSESSION.  §  518. 

518,  Possession  Held  under  a  Mistake  may  be  Adverse  and  Hostile — 
Color  of  Title, — The  rule  seems  to  be  general  that  if  a  person  enters  upon 
land  under  some  show  or  pretense  of  title,  called  "color  of  title,"  and  takes 
possession  of  lands  not  embraced  therein,  with  the  intention  of  possessing  the 
whole,  he  is  treated  as  being  in  possession  of  the  whole;  but  if  it  were  his 
intention  to  possess  a  part  only,  and  his  actual  possession  is  confined  to  that 
part,  then  he  cannot  claim  the  whole.  This  rule  is  not  universally  followed, 
and  in  Mississippi  it  was  held  that  possession  by  an  adjoining  owner,  without 
any  intention  of  claiming  any  more  than  what  belonged  to  him,  was  adverse 
and  gave  title.1 

A  mistake  in  the  description  does  not  prevent  the  grantee  from  acquiring 
title  by  adverse  possession.2  A  mistake,  either  in  the  deed  or  in  taking  of 
possession,  by  which  the  occupant  had  possession  of  the  wrong  lot,  will  not 
deprive  him  of  title  acquired  by  limitation.3  If,  however,  the  entry  is  by 
mistake  upon  land  not  covered  by  his  title,  he  acquires  possession  only  of 
what  he  actually  occupies.4 

If  a  line  has  been  erroneously  run,  and  the  parties,  ignorant  of  the  mis- 
take, occupy  according  to  it  for  the  statutory  period,  believing  and  relying 
upon  it  as  the  true  boundary,  it  cannot  afterwards  be  changed  or  disturbed. 
The  title  thus  acquired  cannot  be  transferred  by  a  mere  oral  agreement  to 
run  a  new  line.5  If  the  parties  did  not  rely  upon  the  first  survey,  but  intended 
or  expected  to  make  a  subsequent  survey  to  settle  the  division-line,  then  the 
possession  will  not  give  title.  The  question  of  what  were  the  parties'  inten- 
tions, their  claims,  and  the  nature  of  their  possession,  is  a  question  for  the 
jury  exclusively.6 

A  purchaser  whose  lot  was  described  as  sixty  feet  frontage,  but  who  took 
possession  of  sixty-six  feet  to  a  fence,  under  belief  that  his  lot  ran  to  the 
fence,  and  actually  occupied  to  the  fence  for  the  full  period  required  to  give 
title,  was  held  to  have  absolute  title  even  though  he  was  mistaken.7  If,  how- 
ever, such  a  mistake  is  made  by  inadvertence  or  ignorance  of  the  true  line, 
and  with  no  intention  to  claim  any  portion  of  the  adjoining  lot,  it  is  not 
adverse. 8 

An  agreement  that  one  of  two  adjoining  owners  should  keep  up  a  division- 
fence,  but  should  keep  it  entirely  within  his  own  bounds,  will  not  preclude 
the  one  erecting  the  fence  from  claiming  to  the  original  boundary;  the  agree- 

1  Metcalf  v.  McCutchen,  60  Miss.  145.  5  Beckman  v.  Davidson  (Mass.),  39  N. 
But   see   Grube    v.  Wells,   34   Iowa    148;       E.  Rep.  38. 

Napier  v.  Simpson,  i  Tenn.  453.  6  Yetzer  v.  Thoman,  17  Ohio  St.  130. 

2  Bean   v.  Bachelder,  74  Me.  202;  Sou-  7  Hitchins  v.  Morrison,  72  Me.  331. 
der  v.  Jeffries,  8  N.  E.  Rep.  288.  .8  Riley  v.  Griffin,  16  Ga.  141;  Brown  v. 

3  Richer  v.  Hubbard,  73  Me.  105;  Can-  Gray,   3    Greenl.  (Me.)   126;   Walbrun  v. 
field  v.  Clark  (Oreg.),  21   Pac.   Rep.  443  Ballen,  68  Mo.  164;     Winn  v.  Abeles,  35 
[1889].  Kan.   85;    Thomas  v.    Babb,  45  Mo.   384; 

4  Napier  v.   Simpson,   i  Tenn.  453;  St.  Parish    v.    Coon,   40  Cal.  33;  Abbott  v. 
L.    University    t/.   McCune,  28  Mo.  481;  Abbott,  51  Me.  575;  St.  Louis  University 
Holton  v.  Whitney,  30  Vt.  410.  v.  McCune,  28  Mo.  481. 


§  519-          OPERATIONS  PRELIMINARY    TO    CONSTRUCTION.  35O 

ment  having  recognized  that  the  fence  was  not  on  the  true  line,  and  the 
agreement  not  being  good  as  a  conveyance  or  color  of  title. l 

The  question  is,  has  the  occupant  claimed  title  to  the  land  in  his  posses- 
sion, or  has  he  believed  that  the  land  belongs  to  him  ?  If  he  has,  then  the 
fact  that  he  has  been  mistaken  will  not  prevent  his  holding  adversely.2  It 
should  be  occupied  under  color  of  title.  A  lost  deed,  an  unrecorded  deed,  a 
void  tax-deed,  may  each  constitute  color  of  title. 

It  appears  that  if  one  deliberately  take  possession  of  land,  or  if  he  inten- 
tionally encroach  his  fence  beyond  his  true  line,  or  if  he  build  his  building 
knowing  it  to  be  upon  the  land  of  his  neighbor,  then  he  will  acquire  a  good 
title  to  the  property  so  occupied;  but  if  he  be  conscientious  and  honest, 
intending  only  to  take  what  properly  belongs  to  him,  then  he  gets  only  what 
is  clearly  his,  no  matter  how  lo*ig  he  has  had  possession.  It  must  be  con- 
ceded that  this  is  unfortunate  law,  and  a  strong  bid  for  dishonesty,  that  the 
court  itself  holds  out  to  its  subjects. 

519.  Possession  by  Agreement  and  Acquiescence  is  Adverse, — It  must 
follow  that  if  two  adjoining  owners  agree  upon  and  establish  a  dividing-line 
between  their  estates,  and  occupy  according  to  that  line,  it  will  preclude  them 
from  ever  denying  it  to  be  the  true  line  after  such  continued  possession  for 
the  statutory  period.3     The  maintenance  of  a  division-fence,  each  keeping  up 
one-half,  and  occupation  to  the  fence  each  on  his  own  side,  is  sufficient  to 
submit  the  question  of  an  adverse  possession  to  the  jury.4    An  agreement  may 
be  inferred  after  long  acquiescence,  and,  as  before  stated,  in  some  states  the 
long  acquiescence  need  not  be  for  the  full  statutory  period  required  to  give 
title  by  adverse  possession.5*     If  the  boundaries  are  indefinite  and  cannot  be 
ascertained,  and  a  division-line  is  agreed  upon  as  the  boundary-line,  the  line 
thus  established  will  control  their  deeds  and  should  be  taken  as  the  true 

line.6f 

520.  The  Possession  must  be  Actual. — By  "  actual  "  possession  is  meant 
an  actual  entry,  a  foothold  upon  the  land,  a  possession  in  fact,  a  standing 
upon  it,  an  occupation  of  it  as  a  real  demonstrative  act  done.      It  should  be 
accompanied  with  the  real  and  effectual   enjoyment  of  the  estate,  with  the 
occupation  of  its  fruits  and  profits.     Such  actual  possession  is  usually  evidenced 
by  occupation,    by  a  substantial    inclosure,    by  cultivation   and   appropriate 
use  according  to  the  customs  of  the  locality.      What  is  necessary  to  constitute 
an   actual   possession   may   vary   in   different  jurisdictions  and   is   frequently 

1  White    v.    Hapeman,    43    Mich.    267;  3i  Amer.  &  Eng.   Ency.  Law  249,  and 

Hagey    v.    Detweiler,     35     Pa.     St.    409;  cases  cited ;  Bader  v.   Zeise,  44  Wis. 

Hitchins  v.  Morrison,  72  Me.  331;  Ricker  Tobey  v.  Secor,  60  Wis.  310,  500. 

v.  Hubbard,  73  Me.  105;  Brown  v.  Cock-  *  Jones  v.  Smith,  64  N.  Y.  180. 

erel,  33  Ala.  38;  Enfield  v.  Day,  7  N.  H.  5i  Amer.  &  Eng.   Ency.  Law  250. 

459.  6  See  Tyler  on  Boundaries  335~337- 

3  i  Amer.  &  Eng.  Ency.  Law  283. 

*  See  Sees.  500-503,  supra.  \  See  Sees.  491-510,  supra. 


351  ADVERSE  POSSESSION.  §  52I« 

defined  in  the  statutes  of  the  states.  Occupation,  residence,  inclosure,  culti- 
vation, and  improvement  suitable  to  the  character  of  the  land  are  all  acts 
evidencing  an  actual  possession. 

It  is  evident  that  the  same  rule  cannot  be  applied  equally  to  all  tracts. 
An  actual  possession  of  wild  lands,  of  a  farm,  or  of  a  city  lot  must  essentially 
be  of  different  character;  and  what  constitutes  .an  actual  possession  must  be 
governed  by  the  facts  of  each  case.  It  is  not  necessary  that  the  land  be 
fenced  or  otherwise  inclosed;  cutting  of  grass  and  of  timber  to  a  definite  line, 
the  cultivation  of  the  soil,  and  similar  improvements  and  evidence  of  owner- 
ship will  extend  the  possession  to  the  portion  actually  cut  over  or  cultivated. 

The  jury  may  take  into  consideration  the  nature  of  the  land,1  and  neither 
actual  possession,  cultivation,  nor  residence  is  necessary  when  the  property  is 
put  to  the  use  for  which  it  is  suited  and  the  only  use  of  which  it  is  suscepti- 
ble.2 Whether  a  party  claiming  title  by  adverse  user  has  such  continuous, 
notorious,  and  hostile  possession  as  would  give  him  title  under  the  statute  of 
limitation  is  a  question  for  the  jury.3 

521.  What  Constitutes  Adverse  Use. — An  occasional  use  of  the  land,  to 
cut  grass,4  firewood  or  timber,  or  for  stripping  bark5  or  taking  stone,  or  for 
pasturage  and  cutting  hay,6  though  accompanied  with  the  payment  of  taxes,? 
will  not  constitute  adverse  possession. 

When  lands  are  partly  or  periodically  submerged,  the  occasional  digging 
and  hauling  of  sand,8  or  of  muck  and  stones,9  the  erection  of  temporary 
structures,10  mere  fugitive,  disconnected  trespasses,  however  long  continued, 
will  not  give  title.11 

Payment  of  taxes,  cutting  timber,  and  grazing  and  watering  one's  cattle 
on  1 60  acres  of  unfenced  pasture  and  timber  lands,  capable  of  being  inclosed, 
and  a  part  of  which  was  suitable  for  cultivation,  and  the  burning  of  a  limekiln 
on  the  land,  do  not  constitute  adverse  possession.12 

If  the  land  be  not  fit  for  any  immediate  or  permanent  improvement,  actual 
occupancy,  cultivation,  or  residence  may  not  be  necessary. 13  The  occupation 
of  pine  land  by  annually  making  turpentine  from  the  trees  14  has  been  held 

JGayner  v.  Hall,  60  Mo.  271.  8  Strange  v.  Spaulding  (Ky.),  298.  W. 

2  Dorr  v.  School  Dist.,  40  Ark.  237.  Rep.  137. 

3  Mason  v.   Ammon  (Pa.),  n  Atl.  Rep.  9  Linen    v.    Maxwell   (N.    H.),    40  Atl. 
449  [1888].  Rep.  184  [1893]. 

4  Sage  v.  Larson  (Minn.),  71  N.  W.  Rep.  10  Fuller  v.  Dauphin  (111.),  16  N.E.  Rep. 
923.  917  [1888];  Dubuque  v.  Coman,  64  Conn. 

5  Lantry  v.  Parker  (Neb.),  55  N.  W.  Rep.  475. 

962;  Taylor  v.  Slingerland  (Minn.),  40  N.  n  Strong  v.  Powell  (Ga.),  20  S.  E.  Rep. 

W.  Rep.  575;  Soapez/.  Doss(Tex.),45  S.W.  6.     But  see  Fin  v.  Wis.  Land  Co.  (Wis.), 

Rep.  387;  Ohio  &  B.  S.  R.  Co.  v.  Wooten  40  N.  W.   Rep.    209;  Mission    v.   Cronin 

(Ky.)     46   S.    W.     Rep.    681;    Harms  v.  (N.  Y.  App.),  38   N.  E.  Rep.  964;  Judson 

Kranz  (111.),  47  N.  E.  Rep.  746.  v.  Duffy  (Mich.),  55  N.   W.  Rep.  837. 

6  Sage  v.  Larson  (Minn.),  71  N.  W.  Rep.  12  Nye    v.  Alfter   (Mo.  Sup.),  30  S.  W. 
923;  Vineyard  v.  Brundrett  (Tex.),  42  S.  Rep.  186. 

W.  Rep.  232.  13Leeper    v.   Baker,    68   Mo.    400,407; 

7  Herbst    v.   Merrifield  (Mo.),  34  S.  W.       Washburn  v.  Cutler,  17  Minn    361. 
Rep.  571.  14Bynum  v.  Carter,  4  Ired.  (N-C.)3*o. 


§422.          OPERATIONS  PRELIMINARY   TO    CONSTRUCTION.  352 

a  sufficient  adverse  possession.1 

The  use  of  a  pond  for  canal  and  mill  purposes,  flowing  and  emptying  at 
convenience,  using  soil  from  the  bottom  to  repair  a  dam,  and  exercising  such 
general  acts,  constituted  an  actual  possession  that  in  time  would  give  title  to 
the  land  under  the  pond;2  but  the  mere  cultivation  of  land  upon  which  the 
owner  of  a  mill-dam  has  the  right  to  back  water  is  not  an  act  of  possession 
adverse  to  such  owner. 3 

Adverse  possession  of  unproductive  lands,  consisting  of  barren  sand-hills 
cut  up  by  sloughs,  is  shown  by  recording  the  deed,  cutting  all  the  timber  of 
any  value  thereon,  having  the  land  surveyed  and  boundary-lines  grubbed  out 
and  staked,  going  upon  the  land  at  intervals,  claiming  absolute  ownership, 
clearing  a  small  portion,  building  a  brush  fence  around  the  portion  cleared, 
employing  agents  in  the  neighborhood  of  the  land  to  look  after  it,  and  paying 
taxes,  without  proof  of  actual  occupation.4 

Adverse  possession  was  held  not  shown  where  the  purchaser  of  land  in 
Texas  which  was  covered  with  timber,  and  suitable  for  a  stock-ranch,  erected 
a  house  suitable  for  ranching  purposes  and  two  stock-pens,  and  carried  a  stock 
of  cattle  to  the  premises,  and  turned  them  loose  on  the  range,  going  on  the 
land  from  time  to  time  to  mark  and  sell  the  stock,  at  such  times  occupying 
the  house  for  less  than  two  weeks,  but  never  for  more  than  four  months  in  a 
year.  There  was  some  furniture  in  the  house,  and,  when  not  occupied,  it 
was  locked,  and  defendant's  son  carried  the  key.5 

Peaceful  possession  and  proof  that  claimant  paid  the  taxes,  cut  valuable 
timber,  erected  shanties,  burned  charcoal,  cleared  and  cultivated  portions, 
run  lines,  made  roads,  and  prevented  trespass,  will  establish  title  by  limita- 
tion.6 

Evidence  that  plaintiff  surveyed  the  land  when  he  purchased  it,  visited  it 
thereafter  nearly  every  Sunday,  pastured  horses  on  it,  set  out  trees,  dug  a 
well,  dictated  the  erection  of  a  small  house,  and  every  year  for  twenty  years 
mowed  the  land  or  let  it  out  to  mow,  is  sufficient  to  sustain  a  verdict  that  he 
had  been  in  actual,  open,  visible,  notorious,  exclusive,  uninterrupted,  and 
adverse  possession  of  the  land  for  twenty  years.7 

Evidence  that  defendants  and  their  predecessors  claimed  to  be  the  owners, 
and  exercised  acts  of  ownership  by  driving  stakes  to  mark  boundaries,'  by 
fishing,  hunting,  and  trapping,  by  leasing  to  others,  by  the  erection  of  signs 
warning  off  trespassers,  and  by  building  a  dike  around  the  land,  is  sufficient 
to  establish  adverse  possession.8 

^lannery  v.  Hightower  (Ga.),  25  S.  E.  5  Pendleton  v.  Snyder  (Tex.),  24  S.  W. 

Rep.  371.     '  Rep.  363- 

'Eastern  R.  v.  Allen,  135  Mass.  13.  6  Deer   Lake  Co.  v.   Mich.  L.  &  I.  Co. 

'State  v.  Suttle  (N.  C.),  20  S.  E.   Rep.  (Mich.),  50  N.  W.  Rep.  807. 
725.  7  Sullivan  v.  Eddy  (111.  Sup.),  45  .N.  E. 

4  Worthley  v.  Burbanks  (Ind.  Sup.),  45  Rep.  837;  Winnipisiogee  Paper  Co.  v.  N. 

N.  E.  Rep.  779.     Accord,  Guinn  v.  Spill-  H.  Land  Co.  (C.  C.),  59  Fed.  Rep.  542. 
man    (Kan.),  35   Pac.    Rep.  13;  Moore  v.  8  Chabert  v.  Russell  (Mich.),  67  N.  W.. 

Hinkle  (Jnd.),  50  N.  E.  Rep.  822  [1898].  Rep.  902. 


353  AD  VERSE   POSSESSION.  §521. 

It  is  sufficient  that  the  occupant  went  into  occupation  under  a  claim  of 
ownership,  erected  buildings  thereon,  and  denned  the  boundaries  thereof  by 
plowing  furrows  around  them,  according  to  the  custom  in  the  neighborhood, 
and  afterwards  remained  in  possession  with  the.  lands  so  inclosed.1 

Occupying  a  place  from  year  to  year,  in  the  spring,  to  make  sugar  from 
the  trees  upon  a  tract  of  land;  having  a  woodpile  and  burying  potatoes  in  the 
ground;  digging  sand  from  time  to  time,  are  regarded  as  mere  acts  of  tres- 
pass if  done  in  a  settled  country.2  One  can  scarcely  distinguish  between 
making  sugar  from  a  maple  orchard,  and  turpentine  from  a  pine  forest;  but 
the  one  act  committed  in  a  settled  community  in  Vermont  might  not  be  an 
adverse  possession,  while  if  committed  on  wild  lands  in  North  Carolina, 
whose  only  use  was  that  of  making  turpentine,  it  would  constitute  an  actual 
possession.3  Surveying  of  the  land  and  paying  taxes  will  not  constitute  actual 
possession  in  New  York.4  Going  upon  the  wild  land,  digging  and  hunting 
for  a  corner  and  boundary-lines,  driving  cattle  thereon  and  employing  a  man 
to  plow  in  the  following  spring,  are  not  such  acts  as  alone  will  create  title  by 
adverse  possession.5  Acts  of  ownership  in  a  highway,  such  as  cutting  grass, 
setting  out  shade-trees,  building  a  sidewalk,  and  piling  lumber  and  stones  in 
the  highway  against  the  fence,  do  not  establish  a  claim  by  adverse  possession.6 
Possession  of  an  unfenced  lot  for  the  purpose  of  marble-  and  stone-cutting, 
involving  the  scattering  of  stone  all  over  the  lot,  is  sufficient.7 

If  used  in  the  manner  adapted  to  the  condition  and  location  of  the  land, 
a  residence  thereon  is  not  essential.8  The  land  must  be  used  in  the  ordinary 
way,  be  put  to  the  same  uses,  and  employed  in  the  same  manner  and  for  the 
same  purposes  as  other  property  in  the  locality.9  If  its  character  or  location 
be  such  as  does  not  permit  of  improvements  of  a  permanent  character,  then 
such  improvements  will  not  be  necessary  to  adverse  possession.  If  it  is  not 
fit  for  residence,  or  its  soil  is  not  susceptible  of  cultivation,  then  the  occupa- 
tion will  be  regulated  accordingly. 10  If  an  adverse  owner  claims  cultivation 
as  an  evidence  of  his  claims,  his  cultivation  must  be  such  as  is  usual  in  the 
neighborhood,  it  must  be  continuous  and  not  merely  an  occasional  negligent 
effort.11  It  is  not  necessary  that  uninclosed  and  uncultivated  land  be  inclosed 
and  cultivated  merely  because  it  can  be.12  It  is  quite  essential  that  the  nature 

1  Sage  v.  Morosick   (Minn.),  71    N.  W.       Rep.  65,  168  U.  S.  278. 

Rep.  930.  8  Anderson  v.  Burnham  (Kan.),  34  Pac. 

2  Wilson  v.  Blake,  53  Vt.  305.  Rep.  1056. 

3  Bynum  v.  Carter,  4  Ired.  (N.  C.)  310.  9  Booth  v.  Small,  25  Iowa  177;  Backus 

4  Douglass    v.   Irvine,    126    Pa.   St.  643  v.   Burke    (Minn.),    65    N.  W.    Rep.    459; 
[1889];  Thompson  v.  Burhans,  61   N.  Y.  Hook  v.  Joyce  (Ky  ),  22  S.W.  Rep.  651,  a 
70.  burial  lot:  Sadtler  v.   The   Peabody  Co., 

6  Brown  v.  Rose,  55   Iowa  734;  Morris       66  Md.  i  [1886]. 

v.  Callanan,   105   Mass.   129;   Wheeler  v.  w Clancy    v.   Hondlett,    39  Me.    451;   I 

Winn,  53  Pa.  St.  122;  Thompson  v.  Bur-  Amer.  &  Eng.  Ency.  Law  255. 

bans,  61  N.  Y.  52;  Overton  v.  Davisson,  n  i  Amer.  and  Eng.  Ency.  Law  259. 

i  Gratt.  211.  12Goodson    v.   Brothers  (Ala.),  20   So. 

"Bliss  v.  Johnson,  94  N.  Y.  235  [1883].  Rep.  443. 

7  Holtzman    v.    Douglas,    18    Sup.    Ct.  I 


§522.  OPERATIONS  PRELIMINARY    TO    CONSTRUCTION.  354 

of  the  land  be  shown.1 

The  possession  must  be  confined  to  one  spot  during  the  whole  period  pre- 
scribed by  statute,  and  must  not  be  a  roving  possession  from  one  part  to 
another  of  the  land,  which  has  not  been  held  adversely  for  the  full  period. 
The  different  periods  of  possession  of  the  separate  parcels  cannot  be  united  to 
make  the  number  of  years  required.2 

522,  Land  should  be  Inclosed. — If  the  property  is  used  openly  and  ex- 
clusively for  the  purposes  for  which  it  is  ordinarily  fit  or  adapted,  accompanied 
with  a  claim  of  ownership,  no  fence  or  other  artificial  boundary  is  necessary 
to  indicate  the  limits; 3  but  if  the  occupant  relies  on  inclosures,  they  must  be 
substantial  and  their  nature  be  governed  by  the  lands  inclosed.  A  mere 
brush  fence,  or  one  made  by  falling  and  lopping  trees,  has  been  held  to  be 
insufficient.4  A  log  boom  built  by  driving  piles  and  connecting  them  by 
boom-sticks,  completely  surrounding  a  tract  of  submerged  land,  has  been  held 
a  sufficient  inclosure  of  the  land.5 

The  land  claimed  should  be  inclosed  on  all  sides.  Two  sides  fenced,  a 
highway  on  the  third,  and  marked  trees  on  the  fourth  side  has  been  held  to 
be  insufficient.6  A  lot  fenced  on  three  sides  was  held  not  to  be  inclosed,  to 
give  adverse  possession.  The  fence  must  be  erected  by  the  party  claiming, 
and  for  the  purpose  of  marking  the  boundaries,  though  the  fence  of  an  adjoin- 
ing owner,  if  on  the  boundary-line  claimed  to,  may  suffice.7  A  lot  fenced  on 
three  sides  and  bounded  by  a  stream  (river)  is  inclosed.8  If  the  adjoining 
tract  of  property  be  owned  by  the  party  making  the  adverse  claim,  and  the 
two  parcels  are  fenced  together,  then  there  is  no  necessity  for  maintaining  a 
fence  between  them.9  Temporary  breaks  in  a  fence  or  an  inclosure  will  not 
interrupt  the  adverse  possession; 10  neither  will  breaks  caused  by  a  flood.11  If 
the  fence  be  built  to  water's  edge  of  navigable  waters,  it  need  not  be  extended 
as  the  waters  recede  to  give  title  to  accretions.12  The  fences  should  be  main- 
tained.13 If  a  fence  cannot  be  maintained  owing  to  violent  waters  or  shifting 
sands,  it  will  be  sufficient  if  the  plat  of  land  be  marked  by  monuments.14 

Natural  boundaries  will  answer  the  purpose  if  of  a  definite  and  substantial 
character.  Whether  they  are  so  or  not  is  a  question  for  the  jury  under  proper 

1  Goff  v.  Cole  (Miss.),  13  So.  Rep.  870.  9  Sanders  v.  Riedinger,  51  N.  Y.  Supp. 

2  Potts  v.  Gilbert,  3  Wash.    C.   C.  475.       937- 

Griffith   v.   Schwenderman,   27   Mo.   412;  10Sharrock    v.  Ritter  (Tex.),  45    S.  W. 

i  Amer.    &  Eng.  Ency.  Law  (2d  ed.)  835.  Rep.  156;  Williams  v.  Rand  (Tex.),  30  S. 

3  Zeilin  v.  Rogers,  21  Fed.  Rep.  103.  W.  Rep.  509;  Hillman  v.  White  (Ky.),  44 
*Sharrock    v.    Ritter  (Tex.),    45  S.  W.  S.  W.  Rep.  in  [1898]. 

Rep.    156   [1898];  Vineyard   v.  Brundrett  n  Baldwin  v.    Durfee    (CaL),    48    Pac. 

(Tex.),  42  S.  W.  Rep.  232.  Rep.  724. 

5  Allen  v.   McKay  (Cal.),  52  Pac.  Rep.  12  Chicago,  etc.,  R.  Co.  v.  Groh  (Wis.), 
828,  120  Cal.  332  [1898].  55  N.  W.  Rep.  714. 

6  Parkersburg  Ind.  Co.  v.  Schultz  (W.  13  Sharrock    v.   Ritter  (Tex.),  45  S.  W. 
Va.),  27  S.  E.  Rep.  255.                    „  Rep.   156;  Duke  v.  Helms  (Tcnn.),  45  S. 

7  i  Amer.  &  Eng.  Ency.  Law  260.  W.  Rep.  465. 

8  Sanders  v.  Riedinger  (Sup.),  43  N.  Y.  "Mission  v.  Cronin    (Sup.),  36    N.  Y. 
Supp.  127;   s.  c.,    51     N.   Y.     Supp.    937  Supp.  77. 

[1898]. 


355  ADVERSE  POSSESSION.  §  524. 

instructions.  If  there  is  sufficient  evidence  to  go  to  the  jury  upon  the  ques- 
tion, it  is  error  to  refuse  an  instruction  that  if  the  jury  believe  that  plaintiff's 
fences,  together  with  natural  barriers,  formed  an  inclosure  sufficient  to  turn 
cattle,  it  was  sufficient  for  the  purpose  of  possession.1  The  sea,  a  lake,  a 
river,  a  slough,  a  ledge  of  rocks  on  one  side  of  a  field  will  constitute  an 
inclosure  for  that  side  sufficient  to  give  adverse  possession.2  A  title  adverse 
to  the  owner  of  a  house  may  be  acquired  by  prescription  in  a  strip  of  land 
adjacent  thereto,  although  the  eaves  of  the  house  project  and  discharge  water 
over  the  strip.3  The  whole  essence  of  the  occupation  and  the  acts  evidencing 
it  may  be  embodied  in  the  answer  to  the  question,  "  Were  the  acts  such  as 
would  bring  to  any  one  who  claimed  title  to  the  land  notice  of  the  fact  that 
the  possessor  claimed,  and  was  exercising,  an  ownership  over  it  adversely  to 
his  claims  ?  "  If  answered  in  the  affirmative,  the  possession  will  be  actual. 

523.  Payment  of  Taxes. — Payment  of  taxes  is  not  an  occupation;  it  is 
merely  evidence  of  an  adverse  claim  of  title.4     It  alone  Confers  no  right  to 
land.5     The  possession  should  be  corporeal.6     Payment  of  taxes  for  twenty- 
five  years  is  strong  evidence  of  a  claim  of  title,  and  the  failure  to  make  claim 
or  to  pay  the  taxes  is  some  evidence  of  an  abandonment  of  any  rights  in  the 
property.7     To  make  such  an  act  evidence  of  adverse  possession  the  person 
paying  taxes  must  have  an  interest  in  the  claim  of  title  to  the  land.8     The 
books  of  the  assessor  of  the  town  in  which  the  land  lies  are  admissible  as 
evidence,  to  show  to  whom  the  land  was  assessed  during  the  statutory  period.9 

Where  the  taxes  for  a  year  do  not  become  due  and  payable  until  after  the 
period,  necessary  to  perfect  title  under  the  five  years'  statute  of  limitations, 
ends,  title  becomes  perfect  under  the  statute  without  payment  of  the  taxes  for 
that  year.10 

524,  Adverse  Possession  under  Color  of  Title. — Thus  far  we  have  treated 
only  of  the  cases  where  the  owner-ship  was  claimed  entirely  as  a  result  of  the 
adverse   possession.     No    deed    or  equivalent    muniment   is  necessary   when 
actual  possession  has  been  maintained  under  adverse  claim.11 

A  party  who  claims  against  the  legal  owner,  who  has  entered  without  color 
of  title,  and  who  relies  wholly  on  his  adverse  possession  must  show  an  actual 

Goodwin    v.    McCabe,    75    Cal.    584  Rep.  574;   Gage  v.  Smith  (111.),  31  N.   E. 

[1887].  Rep.  430. 

2  Flint  v.  Long  (Wash.),  41  Pac.   Rep.  7  Holtzman  v.  Douglas,  18  Sup.  Ct.  Rep. 
49.  65.  168  U.  S.  278  [1897]. 

3  Randall  v.  Sanderson,  in  Mass.  114  8  Thatcher  v.  Gottleib(C.  C.  A.),  59  Fed. 
[1872].  Rep.  872. 

4  Wren  v.  Parker  (Conn.),  18  All.  Rep.  9  Elwell   v.    Hinckley,    138    Mass.    225 
790;  Cashman  v.  Cashman's  Heirs  (Mo.),  [1885];  Wren  v.  Parker  (Conn.),  18  Atl. 
27  S.  W.  Rep.  549;  Langdon  v.  Templeton  Rep.  790;  Pasley  v.   Richardson  (N.  C.), 
(Vt.),  28  Atl.  Rep.  866;  Whitman  v.  Shaw  26  S.  E.  Rep.  32. 

(Mass.),  44  N.  E.  Rep.  333.  10  Halbert    v.   Brown   (Tex.),  31   S.   W. 

5Durfee  v.   Peoria,  etc.,  Ry.  Co.  (111.),  Rep.   535.      But  see  Neilson  z/.   Grignon 

30    N.    E.   Rep.  686;    Hilburn   v.   Harris  (Wis.),  55  N.  W.  Rep.  890. 

(Tex.),  298.  W.  Rep.  923.  n  Humbert  v.  Trinity  Church, 24  Wend. 

6  Chamberlain   v.   Abadie  (La.),  19  So.  (N.  Y.)  604. 


§  525»  OPERATIONS   PRELIMINARY    TO    CONSTRUCTION. 

occupation  to  a  definite  line  or  a  substantial  inclosure,  and  to  defeat  the  legal 
title  the  possession  must  have  been  definite,  positive,  and  notorious. 

When  land  is  claimed  under  the  right  of  possession  only,  its  extent  is  con- 
fined to  the  limits  actually  occupied,  inclosed,  and  cultivated  under  claim  of 
ownership;  but  when  the  land  has  been  entered  upon,  occupied,  and 
improved  under  a  deed  or  other  written  document,  usually  spoken  of  as 
color  of  title,  the  possessor  acquires  a  good  title  to  all  that  his  dee4  or  instru- 
ment of  title  describes  or  professes  to  convey.1  And  this  is  true  even  though 
his  deed  or  instrument  of  conveyance  be  good  for  nothing.  He  must,  how- 
ever, have  had  the  possession  of  the  land  entirely  to  himself;  for  if  the  true 
owner  has  had  possession  of  any  part  of  the  tract,  the  disseizor's  claim  will  be 
confined  to  the  part  he  has  had  inclosed  and  has  actually  occupied  or  pos- 
sessed. His  possession  of  a  part  cannot  be  extended  to  the  whole  if  the  true 
owner  has  had  possession  of  any  part  of  the  land.  The  real  owner,  having  the 
better  claim,  is  better  entitled  to  the  land  to  which  both  may  equally  claim 
possession.2 

525,  Adverse  Possession  must  be  Open,  Visible,  and  Notorious. — For  the 
disseizor  to  claim  adverse  possession  to  anything  at  all,  the  occupation  must 
have  been  open,  visible,  notorious,  and  exclusive  of  the  part  claimed.3    There 
must  be  no  stealthiness  or  secretiveness  in  the  occupation.      It  must  be  open 
and  notorious,  and  if  held  under  color  of  title  it  seems  the  instrument  of  title 
should  be  registered.     A  secret  deed  which  is  not  recorded,  given  to  a  party 
who  occupies  or  has  occupied  under  recorded  leases  recently  expired,  will  not 
amount  to  an  entry  under  color  of  title,  and  to  an  adverse  possession,  unless 
the  true  owner  is  given  notice.4     If  A  is  entitled  to  a  conveyance  of  land,  and 
by  an  agreement  between  A  and  B,  in  order  to  defraud  A's  creditors,  the 
land  is  conveyed  to  B,  a  title  to  the  land  by  adverse  possession  of  more  than 
twenty  years  is  acquired  by  A  against  B  if  B  knows  that  A  is  holding  the 
land  adversely  and  under  a  claim  of  right  during  his  possession,  although  A 
is  without  means  to  pay  his  debts  during  such  possession.5 

526.  What  is  Color  of  Title. — Color  of  title  has  been  defined  to  be  that 
which  has  the  appearance  of  title,  but  which  is  in  reality  no  title; 6  a  deed  not 
executed  in  proper  manner;  a  conveyance  from  one  who  does  not  own  the 
land,  or  who  has  no  authority  from  the  real  owner  to  execute  a  conveyance; 
in  fact  any  instrument  purporting  to  be  a  conveyance,  but  that  does  not  for 
some  reason  have  that  effect.     Such  color  of  title  might  be  a  bequest  under 
will  by  descent,  a  deed  not  recorded,  an  invalid  or  void  bond  for  title,  an 
ancient  deed,   a  mortgagee's  deed,  a  deed  without  seal,   an  administrator's 
deed,  a  guardian's  deed,  a  void  patent,  a  deed  from  one  having  no  title  if 

1  Kendrick  v.  Latham  (Fla.),  6  So.  Rep.  *  See  I  Amer.  &  Eng.  Ency.  Law  276. 
871.  5Elwell    v.    Hinckley,    138    Mass.    225 

2  Jackson  v.  Woodruff,  I  Cowen  276.  [1885]. 

3  i  Amer.  &  Eng.  Ency.  Law  262;  De-          6  Swift  v.  Mulkey  (Oreg.),  21  Pac.  Rep. 
long  v.  Mulcher,  47  Iowa  445  [1877].  87i- 


357  ADVERSE   POSSESSION.  §526. 

grantee  is  ignorant,  an  infant's  deed,  a  deed  with  but  one  witness  when  two 
are  required. 

The  claimant  who  enters  under  a  color  of  title  may  claim  and  hold  to  the 
boundaries  described,  after  adverse  possession  for  the  statutory  period.  As 
to  what  is  color  of  title  is  a  question  of  law  for  the  court.  The  question  of 
occupancy  under  it  is  one  of  fact  for  the  jury.1 

An  absolute  nullity,  as  a  void  deed,  judgment,  etc.,  will  not  constitute 
color  of  title2  if  the  invalidity  be  apparent  on  the  face  of  the  deed.3 

The  record  of  a  survey  does  not  of  itself  constitute  color  of  title,  nor  does 
an  executory  contract,  nor  a  deed  signed  by  one  as  "agent,"  nor  a  void 
judgment  of  a  court,  a  tax  certificate,  nor  an  instrument  in  which  the  grantor 
admits  title  in  another.  Possession  taken  under  a  mortgage  before  foreclosure 
is  not  adverse  possession  under  such  claim  and  color  of  title,  with  payment 
of  taxes.4 

Possession  by  a  railroad,  under  a  verbal  gift,  of  a  right  of  way  is  suf- 
ficiently adverse  to  set  in  motion  the  statute  of  limitations,5  as  is  a  parol  gift 
of  land  made  by  a  father-in-law  to  his  son-in-law,  who  entered,  made  valuable 
improvements,  continued  in  possession,  claiming  the  land  as  his  own,  and 
then  conveyed  it  to  a  purchaser  for  value.6  In  determining  the  character  of 
the  possession  of  one  claiming  title  to  land  by  gift,  the  real  question  is  not  so 
much  what  was  intended  by  the  donor  as  what  was  the  donee's  understand- 
ing, what  he  claimed  and  did.  If  it  be  found  that  he  believed  the  gift  to  be 
absolute,  and  went  into  possession  under  that  belief  and  held  adversely  to  the 
donor  for  twenty-one  years,  the  verdict  must  be  for  him.7 

To  constitute  a  color  of  title  the  instrument  (deed)  by  which  the  convey- 
ance is  attempted  must  define  the  extent  of  the  claim.  Such  a  deed  is  one 
whose  description  fails;  as,  e.g.,  a  description  starting  at  a  corner  named, 
"  thence  east  27  chains  50  links  to  John  Farwell's  patent,"  etc.,  which  gave 
only  a  line,  and  no  area  whatever,  when  applied  to  the  ground.  It  was  not 
competent  to  give  color  of  title,  because  no  definite  boundaries  were  described 
and  no  land  included  by  them. 

A  bad  title  will  answer  for  color  of  title;  but  if  no  lands  are  described, 
nothing  can  pass.  If  the  deed  under  which  constructive  possession  is  claimed 
contains  no  description  that  can  be  located  upon  the  ground,  then  there  is 
nothing  to  limit  his  claims  of  possession  except  what  has  actually  been 
occupied.8 

1 1  Amer.  &  Eng.  Ency.  Law  276,  277.         Rep.  499. 

2  i  Amer.  &  Eng.  Ency.  Law  288;  Curdy          5Shepard  v.  Galveston,  H.  &  H.  R.  Co. 
v.  Stafford  (Tex.),  27  S.  W.  Rep.  823.    But      (Tex.  Civ.  App.),  22  S.  W.  Rep.  267. 

see  Murphy  v.  Doyle,  33  N.  W.  Rep  220,  6Studstill    v.   Willcox  (Ga.),    20   S.    E. 

37  Minn.  113;  Miesen  v.  Canfield  (Minn.),  Rep.  120. 

67  N.  W.  Rep.  632.  7  Moreland   v.   Moreland   (Pa.),   15  All. 

3  Bartlett    v.    Ambrose,   78    Fed.    Rep.  Rep.  655    [1888]. 

839.  8  Jackson    v.   Woodruff,  i  Cowen   276. 

4  Johnson    v.  Davidson  (111.),  44  N.   E.       See  Goodwin  z>.  McCabe,  75  Cal.  584. 


§527.          OPERATIONS  PRELIMINARY   TO    CONSTRUCTION.  358 

By  the  same  rule,  a  person  who  took  possession  of  lot  No.  5  under  a  deed 
for  the  adjoining  lot  No.  4,  believing  it  to  be  his  lot  and  claiming  it  as  such, 
was  held  to  have  acquired  adverse  possession  of  only  so  much  of  lot  No.  5  as 
he  actually  had  occupied  and  improved,  because  no  part  of  lot  No.  5  was 
described  in  his  deed.  The  general  statement  that  the  occupation  of  part  of 
a  tract  will  give  title  to  all  that  the  color  of  title  covers  or  describes  should 
be  accepted  with  some  discretion.  While  it  is  reasonable  and  just  enough  in 
case  of  a  single  farm  or  lot  of  land  where  cultivation,  improvement,  and 
husbandry' are  carried  on,  it  would  be  mischievous  indeed  if  a  person  produc- 
ing a  worthless  title,  perhaps  from  one  who  had  not  the  slightest  claim,  could 
acquire  title  to  a  thousand  acres  described  by  the  ocupation  and  improvement 
of  one  acre  only.  No  such  doctrine  was  ever  intended  to  be  sanctioned  by 
the  courts.1 

When  a  man  has  occupied  under  color  of  title  adversely  and  exclusively, 
he  may  hold  to  the  boundaries  described  in  the  instrument  under  which  he 
claims.  He  must  have  the  full  constructive  possession  entirely  to  himself, 
exclusive  of  the  true  owner,  or  he  will  be  confined  to  his  actual  possession.2 

The  occupant  under  color  of  title  is  confined  to  the  boundary-line 
described  in  his  deed  and  cannot  claim  outside  that  line.  He  may  acquire 
title  outside  by  actual  possession  only.  A  plat  or  survey  may  be  used  in 
connection  with  other  evidence  to  fix  the  origin,  date,  and  limits  of  the  pos- 
session. 3 

But  in  Missouri  there  seems  to  exist  a  different  rule  where  the  boundaries 
of  the  lot  claimed  are  given  on  a  town  map,  in  which  case  the  claim  must  be 
under  such  map  to  make  it  available.4  The  extent  of  the  possession  is  con- 
fined to  the  limits  claimed  at  the  time  of  entry.  The  fact  that  the  titles  have 
been  obtained  from  different  sources  makes  no  material  difference  if  the  tracts 
covered  by  the  titles  adjoin  each  other  and  are  all  in  one  inclosure,  and  no 
one  but  the  claimant  is  residing  upon  them.5 

527.  Adverse  Possession  of  Mines. — Adverse  possession  may  be  acquired 
of  a  mine,  a  mining  claim,  a  quarry,  or  a  vault.  When  the  minerals  below 
the  surface  have  been  severed  by  deed,  no  interest  is  acquired  in  them  by 
adverse  possession  of  the  surface.  To  lay  claim  to  a  mine  below  the  surface, 
the  occupant  must  prove  possession  of  the  mine  independently.6  Similarly 
the  possession  of  a  vault  beneath  the  surface  was  held  not  to  be  a  possession 
of  the  surface.7 

The  same  general  principles  apply  to  the  adverse  use  of  a  mining  claim  as 

1  Woodworth,  J.,  in  Jackson  v.  Wood-  5Wharton  v.  Bunting,  73  111.  16. 

ruff,  i  Cowen  276.  6  i  Amer.  &  Eng.  Ency.  Law  296;  Lulay 

2 1  Amer.  &  Eng.  Ency.  Law  290.  v.  Barnes  (Pa.),  34  All.  Rep.  52;   Kingsley 

3  Dorr  v.    School    Dist.,    40   Ark.    237;  v.  Hillside  C.  &  I.  Co.  (Pa.),  23  All.  Rep. 

Heaver  v.  Morgan  (W.  Va.),  23  S.  E.  Rep.  250. 

874;  Fullam  v.  Foster  (Vt.),  35  Atl.  Rep.  7  Keoningsz/.  Jung  (Wis.),  40  N.W.  Rep. 

484.  Soi  [1889]. 

*  St.  Louis  v.  Gorman,  29  Mo.  593. 


359  ADVERSE   POSSESSION.  §  528. 

to  that  of  land.  The  possession  must  be  open,  adverse,  actual,  continuous, 
exclusive,  etc.,  the  same  as  to  acquire  title  to  land.  The  mining,  to  consti- 
tute actual  possession,  must  be  prosecuted  as  continuously  as  the  nature  of 
the  business  and  the  custom  and  convenience  of  the  country  will  permit.1 

The  mere  digging  for  coal  in  the  winter,  the  property  being  abandoned  the 
rest  of  the  year,  is  a  mere  act  of  trespass  and  will  not  constitute  adverse  pos- 
session. 2 

528.  Owner  must  have  had  Notice  of  Adverse  Possession. — The  adverse 
nature  of  the  possession  must  be  manifest  to  the  owner,  who  must  have 
notice,  by  some  means,  that  his  land  is  held  adversely  to  him  and  hostile  to 
his  claim.  To  give  this  notice  it  is  not  necessary  that  the  occupant  should 
prepare  and  deliver  a  manuscript  declaration  of  his  claims,  nor  go  to  the 
owner  to  declare  in  person  that  he  holds  it  as  his  own.  Mere  acts  of  owner- 
ship, such  as  are  usually  exercised  over  land,  are,  at  law,  notice  to  all  the 
world.  If  their  hostile  character  be  such  that  an  owner  who  is  reasonably 
careful  of  his  interests  would  discover  the  adverse  possession,  they  will 
be  deemed  sufficient  to  give  notice.3  It  has  been  held  that  the  owner  of  the 
land  should  know  of  it.4  The  recording  of  a  deed  of  conveyance  in  the 
county  registry  is  a  notice  to  the  world  and  therefore  to  the  party.5 

Any  act  which  is  sufficient  to  put  a  person  on  inquiry  is  sufficient  for  ad- 
verse possession,  such  as  visible  and  notorious  ownership  under  a  claim  of 
right.6  Mere  acts  of  trespass  will  not  be  notice  of  adverse  possession;  the 
occupation  must  be  of  such  a  character  that  if  the  owner  visited  the  land  he 
might  see  visible  signs  of  hostile  possession:  habitations,  inclosures,  cultiva- 
tion— something  to  show  him  that  some  one  is  disputing  his  title. 

A  mere  notice  posted  on  the  land  declaring  an  intention  to  hold  property 
is  insufficient.7  Yet  where  one  of  two  tenants-in- common  of  a  party-wall 
bi^ilt  the  wall  to  an  increased  height,  and  on  one  of  the  stones  was  placed 
an  inscription  stating  that  the  wall  and  the  land  on  which  it  stood  belonged 
to  him,  it  was  held  that  on  these  facts  a  jury  might  find  an  actual  ouster  upon 
which  plaintiff  might  maintain  an  action  against  defendant.8  Such  an  inscrip- 
tion on  a  wall  will  prevent  an  adverse  possession  arising  even  though  the 
person  has  not  asserted  his  claims  of  ownership  for  thirty  years.9 

Operating  a  railroad  over  land,  even  though  there  is  nothing  recorded 
showing  the  extent  claimed.  Building  a  shed,  cutting  wood,  quarrying  and 
burning  limestone,  and  the  ordinary  operations  of  farming,  if  carried  to  a 
reasonable  extent,  have  been  held  to  give  notice.  Actual  inclosure  is  not 

1  Stephenson  v.  Wilson,  50  Wis.  95;  37          5  Forest    v.    Jackson,    56    N.    H.    357; 
Wis.  482;  40  Wis.  594.  Bracken  v.  Jones,  63  Tex.  184. 

2  Jackson  v.  Stoetzel,  87  Pa.  St.  302.  6Yelverton    v.    Steele,    40    Mich.    538 
3Graydon  v.  Hurd  (C.  C.  A.),  55  Fed.       [1879]. 

Rep.    724;  Goodson    v.   Brothers   (Ala.),  7  Lynde  v.  Williams,  68  Mo.  365. 

20   So.    Rep.   443;   Unger  v.   Mooney,  63  8Stedman  v.  Smith,  8  E.  &  B.  I  [1857]. 

Cal.  586.  9  Phillipson  v.  Gibbon,  L.  R.  6  Ch.  428. 

4  Reimer  v.  Stuber,  20  Pa.  St.  458. 
i 


§  529-          OPERATIONS  PRELIMINARY   TO    CONSTRUCTION.  360 

.sufficient,  nor  is  cutting  timber,  marking  of  trees,  and   making  an  entry  or 
.survey. l 

An  owner  of  land  is  supposed  to  know  the  locality  and  the  boundaries  of 
his  property,  and  he  is  chargeable  with  notice  of  the  meaning  and  locality  of 
•every  settlement  made  upon  it  by  another  without  his  authority.2  He  cannot 
plead  his  ignorance  of  others'  possessions  and  adverse  claims  to  his  land,  nor 
does  the  fact  that  he  lives  apart  from  the  land,  or  even  at  a  great  distance, 
relieve  him  from  the  notice.  Though  expected  to  know  the  boundaries  of  his 
land,  he  would  not  be  chargeable  with  notice  that  an  adjoining  owner  had 
encroached  upon  him  a  few  feet  by  building  his  fence  over  the  line.3 

It  has  been  held  that  if  a  person  pass  over  the  corner  of  a  farm  for  twenty 
years  unknown  to  the  owner,  not  secretly,  he  has  a  prescriptive  right. 
However,  evidence  of  ignorance  of  the  owner  is  admissible.4 

The  personal  presence  of  an  adverse  claimant  is  not  required.  He  may 
occupy  by  his  agent  or  tenants,  or  by  a  purchaser  under  contract,5  or  a 
woman  by  her  husband.6  The  possession  of  one's  agent  is,  for  the  purpose 
of  the  statute  of  limitations,  the  possession  of  the  principal.7  Possession  by  a 
husband  or  wife  after  the  death  of  either  is  adverse  to  the  heirs. 8  Possession 
•of  land  by  one  who  acts  as  bailiff  or  tenant  both  for  the  rightful  owner  and 
for  an  adverse  claimant  is  the  possession  of  the  rightful  owner.9 

529.  The  Possession  must  be  Continuous  and  not  Interrupted, — If  the 
true  owner  succeeds  in  depriving  the  occupant  of  possession,  the  time  already 
•occupied  by  the  latter  goes  for  naught,  and  he  must  begin  anew.  An 
^abandonment  of  the  premises  even  with  the  intention  of  returning  shortly  will 
deprive  the  occupant  of  the  benefit  of  the  time  he  has  held,  unless  he  has  held 
for  the  full  period.10  And  this  is  true  even  though  the  taxes  are  assessed 
against  him.11  Every  discontinuance  of  possession  restores  the  possession  to 
the  rightful  owner,  and  causes  the  occupant  to  forfeit  any  and  every  claim 
that  he  may  have  acquired.  If  he  re-enter,  it  is  a  new  entry  and  cannot  be 
added  to  the  time  occupied  previous  to  the  abandonment.12 

An  interruption  for  one  day  only  is  sufficient  to  destroy  the  occupant's 
adverse  possession,  and  to  require  him  to  continuously  hold  for  the  full 
statutory  period  after  the  date  of  the  interruption;13  but  if  title  has  been 

1Yelverton    v.    Steele,    40    Mich.     538  Rep.  814;  Berkowitz  v.  Brown,  23  N.  Y. 

[1879].  Supp.  792.  See  Everett  v.  Newton  (N.  C.), 

2  Brownson  v.  Scanlan,  59  Tex.  222.  23  S.  E.  Rep.  961. 

3  Bracken  v.  Jones,  63  Tex.  184.  9Zirngibl    v.    Calumet    &    C.    Canal  & 
4Hennefin  v.  Blake,  102  Mass.  297.  Dock  Co.  (111.   Sup.),  42  N.  E.  Rep.  431; 

5  Cox    v.    Daugherty   (Ark.),  36  S.  W.  Harper  v.   Morse    (Mo.),  21   S.  W.   Rep. 
Rep.  184.  517. 

6  Wood    v     Armour   (Wis.),  60   N.  W.  10  Susquehanna  R.  Co.  v.  Quick, 68  Pa. 
Rep.  791;  McCleod  v.   Bishop  (Ala.),  20  St.  189. 

So.  Rep.  130;  Brown  v.  Bocquin  (Ark.),  n  Louisville  &  N  C.  Ry.  Co.  v.  Philyaw 

20  S.  W.  Rep.  813.  (Ala.),  6  So.  Rep.  837. 

7Lantry   v.   Parker   (Neb.),  55    N.  W.  12 1  Amer.  &  Eng.  Ency.  Law  272. 

Rep.  962.  13  Olwine  v.  Holman,  23  Pa.  St.  279. 

8Pattison    v.   Dryer  (Mich.),  57  N.  W. 


361  ADVERSE   POSSESSION.  §  530. 

acquired  by  possession  for  the  full  period,  it  cannot  be  lost  by  absence, 
abandonment,  or  interruption,  but  only  by  the  same  adverse  possession  for 
the  full  period  by  which  the  person  secured  it  himself.1  Whether  the  posses- 
sion has  been  continuous  or  interrupted  is  a  question  ,of  fact,  and  therefore 
one  for  the  jury.2  What  constitutes  possession,  interruption,  or  abandon- 
ment is  a  question  for  the  court.3 

No  presumption  arises  that  an  adverse  possession  of  land  shown  to  have 
existed  for  a  time  continues  for  a  sufficient  period  to  give  title  by  adverse  pos- 
session;4 but  its  continuance  for  the  statutory  period  under  a  claim  or  color 
of  title  must  be  proved.5  The  presumption  is  that  the  possession  of  land  is 
in  subordination  to  the  legal  title.6  Possession  must  be  proven  for  the  full 
period  required  by  statute.  Proof  that  a  person  took  adverse  possession  of 
land  "  about  "  May  i,  1866,  and  remained  in  possession  until  "  about  "  May 
i,  1886,  is  not  sufficient  to  prove  title  by  adverse  possession,  the  statute  of 
limitations  being  twenty  years.7 

The  possession  must  have  been  adverse  throughout  the  whole  period. 
Uninterrupted  possession  when  it  has  been  in  subordination  to  the  true  owner 
for  a  part  of  the  time  cannot  be  counted  and  added  on  to  make  the  full 
period  required.  The  same  applies  to  occupation  under  color  of  title.  There 
must  have  been  an  actual  continuous  possession  of  a  part,  and  a  claim  of  the 
whole,  without  interruption,  for  the  whole  period.8 

530.  What  is  an  Abandonment  or  Interruption. — A  recovery  by  the 
owner  in  an  action  of  ejectment  and  the  enforcement  of  the  writ  of  possession 
will  interrupt  adverse  possession;9  but  an  action  brought  by  the  owner  and 
afterwards  dismissed  will  not  interrupt  the  adverse  holding.10  An  order  of  the 
court  requiring  the  conveyance  of  the  land  will  interrupt  the  occupation.11 

An  agreement  to  arbitrate  between  the  occupant  and  the  owner  will  cause 
an  interruption.12  An  effort  by  the  occupant  to  purchase  the  property  from 
the  true  owner  is  a  recognition  of  the  latter' s  title,  and  if  made  within  the 
statutory  period,  and  not  to  settle  any  real  or  threatened  litigation,  is  such  an 
admission  of  the^wner's  title  as  will  interrupt  the  running  of  the  statute.13 
Such  an  offer  is  not,  however,  conclusive  of  the  want  of  title.14  An  effort  to 
buy,  or  the  actual  buying,  of  outstanding  claims  is  not  an  abandonment  of 
possession,  or  an  acknowledgment  that  such  claims  are  valid.15 

1  Shriver  v.  Shriver,  86  N.  Y.  571  Spof-  7  Allis  v.  Field  (Wis.),  62  N.  W.  Rep.  85. 
ford  v.  Bennett,  55  Tex.  293.  8  I  Amer.  &  Eng.  Ency.  Law  269. 

2  r  Amer.  &  Eng.  Ency.  Law  272.  9  Dun  v.  Miller,  75  Mo.  260. 

3  Banks  v.  Collins  (Ky.),  39  S.  W.  Rep.  10  i  Amer.  &  Eng.  Ency.  Law  275. 
519.  n  Gower  v.  Quinlan,4O  Mich.  572  [1879]. 

*  Woods  v.   Hull  (Tex.),  38  S.  W.  Rep.  12  Perkins  v.  Blood,  36  Vt.  273. 

165.  13  Litchfield    v.   Sewell  (la.),  66    N.  W. 

6  Atkinson    v.    Smith    (Va.),    24   S.    E.  Rep.  104. 

Rep.    901.      But    see    Hollingsworth    v.  u  Warren  v.  Bowdran  (Mass.),  31  N.E. 

Walker  (Ala.),  13  So.  Rep.  6.  Rep.  300. 

6 Sanders  v.  Riedinger  (Sup.),  43  N.  Y.  15  i  Amer.  &  Eng  Ency.  Law  275;  Cha- 

Supp.  127.     But  see  Alexander  v.  Gibbon  pin  v.  Hunt,  40  Mich.  595  [18.79]. 
(N.  C.),  24  S.  E.  Rep.  748. 


§  53°-  OPERATIONS  PRELIMINARY    TO    CONSTRUCTION.  362 

The  recording  of  a  conveyance  of  underlying  coal  is  not  an  entry  inter- 
rupting adverse  possession  of  the  surface  of  the  land.1  The  continuity  of 
possession  is  not  broken  by  a  sheriff's  sale,  and  deeds  of  the  land  during  such 
possession.2 

If  the  claimant  yield  his  possession  when  threatened  with  legal  proceedings 
by  the  owner,  or  if  he  accept  a  lease  from  him,  or  make  an  agreement  for  a 
consideration  that  the  owner  will  not  bring  suit  to  recover  possession  of  the 
land,  these  acts  anlount  to  an  acknowledgment  by  the  claimant  of  the  owner's 
superior  title  and  may  destroy  his  adverse  holding. 

The  paying  of  rent  to  one  who  is  not  the  owner  and  whose  title  is  imper- 
fect will  not  amount  to  an  interruption,3  for  the  occupant  may  hold  adversely 
to  certain  persons  and  not  as  regards  others.4  However,  his  actual  possession 
must  be  adverse  to  all  the  world,  not  merely  to  one  who  sues  for  the  land.5 

Mere  acts  of  trespass,  such  as  tearing  down  a  fence  by  an  adjoining  owner, 
violent  acts  by  strangers,  as  tearing  down  the  house  and  making  the  premises 
uninhabitable,  interference  and  occupation  by  an  army  in  times  of  war,  will 
not  arrest  the  possession,  or  stop  the  running  of  the  statute  in  the  claimant's 
favor. 6 

Adverse  possession  may  be  interrupted  by  abandonment  of  premises  for  a 
sufficient  period  to  interrupt  the  continuity.  Neglect  and  abandonment  by 
the  claimant  will  work  a  forfeiture;  as,  e.g.,  by  beginning  the  erection  of  a 
house  and,  after  leaving  it  partly  built,  returning  some  months  later  to  finish 
and  occupy  it,7  or  by  permitting  the  fences  that  inclose  the  land  to  decay  and 
become  insufficient  to  protect  the  land.8  But  when  a  fence  was  maintained 
intact  for  a  number  of  years,  when  gaps  were  cut  in  it,  and  left  down  for  two 
or  three  years,  but  the  posts  remained  standing,  with  the  wires  thereon,  and 
it  could  be  seen  that  a  fence  was  around  the  land,  though  there  were  gaps  in 
it,  it  was  held  that  such  fence  was  sufficient  to  give  notice  of  adverse  posses- 
sion, and  that  plaintiffs  were  entitled  to  the  land.9  The  posts  should  not  be 
any  considerable  distance  apart.10 

The  fact  that  a  purchaser  does  not  take  possession  b>»  tenant  until  two 
months  after  purchase  does  not  break  a  continuity  of  possession  unless  there 
be  evidence  of  an  intention  to  abandon.11  Vacancy  for  two  years  because  the 
claimant  was  unable  to  find  a  tenant  will  not  destroy  the  continuity  of 
possession.12 

^innegan  v.  Penna.  Trust  Co.,  5  Pa.  clair,  22  S.  C.  361. 

Super.  Ct.  124  [1897].  'Byrne  v.  Lowry,  19  Ga.  27. 

2Goodsen    v.    Brothers   (Ala.),  20   So.  8  Borel  v.  Rollins,  30  Cal.  408. 

Rep.  443.  9  Moore  v.  McCown  (Tex.   Civ.  App.), 

'Donahue   v.   Oleonor,   45  N.  Y.  Sup.  20  S.  W.  Rep.  1112. 

Ct.  278.  10Freedman    v.      Bonner    (Tex.     Civ. 

4  Portis  v.  Hill,  14  Tex.  69.  App.),  46  S.  W.  Rep.  47. 

5  Bracken  v.  Union  Pac.  Ry.  Co.  (C.  C.  "Gary  v.  Woodham  (Ala.),  15  So.  Rep. 
A:),  75  Fed.  Rep.  347.  840. 

6 1  Amer.  &  Eng.  Ency.  Law  273;  Ford  12  Downing    v.    Mayes    (111.),  38    N.  E. 

v.  Wilson,    35    Miss.  490;  Duren  v.  Sin-       Rep.  620. 


363  ADVERSE   POSSESSION.  §  532. 

Absence  from  the  land  at  times,  leaving  them  vacant,  but  with  no  inten- 
tion of  abandoning  possession,  will  not  amount  to  an  interruption;  e.g.,  a 
short  absence  on  business.  If  one  member  of  the  family  remains,  it  will 
prevent  interruption,  as  will  an  agent  or  tenant  who  is  left  in  possession.1 
Where  a  person  enters  on  land  under  color  of  title,  and  cultivates  the  land, 
except  for  one  year,  during  which  he  pastured  it,  and  keeps  up  the  farm 
fences,  he  cannot  because  no  one  actually  resided  on  the  land,  be  said,  as  a 
matter  of  law,  to  have  abandoned  the  possession.2 

531,  Exclusive  Possession   and   Interruption   Determined  by  Location 
and  Character  of  Land. — What  is  an  adverse  and  exclusive  possession,  and 
what   is   an   interruption   of  such  possession,   depends  very  much  upon  the 
character  of  the  land,  and  the  purposes  to  which  it  is  adapted  and  for  which 
it  is  used.      The  adverse  possession  of  an  outlying  lot  of  small  value,  remote 
from  the  dwellings  of  people,  suitable  for  pasturing  or  for  the  growth  of  wood 
or  for  other  purposes  of  husbandry,  requires  a  very  different  proof  from  that 
which  establishes  the  exclusive  occupation  of  a  residence  or  a  shop  or  a  store- 
house within  the  limits  of  a  city.     The  rule  of  law  is  the  same  in  each  case, 
but  the  evidence  necessary  to  prove  the  fact  is  very  different.      In  either  case 
the  question  is.  "  Has  the  adverse  possession,  considering  the  nature,  situa- 
tion,   and    uses   of   the  land,   been  exclusive  and   continuous?"     This  is   a 
question  for  the  jury;  and  although  there  may  be  cases  of  such  a  nature  and 
so  plain  that  it  would  be  the  duty  of  the  court  to  rule  as  a  matter  of  law  that 
the  adverse  possession  has  been  interrupted,  yet  the  general  principle  is  that 
it  is  a  question  for  the  jury.* 

532.  Interference  or  Overlapping  of  Title. — When  the  descriptions   of 
lands  in  the  deeds  of  two  claimants  cover  or  include  a  piece  or  strip  of  the 
same  land  there   is  said  to   be  an   interference   of  title.      If   either  actually 
occupies  and  improves  the  overlapping  piece  for  the  statutory  period  openly, 
adversely,    continuously,    and    exclusively,    he  will    have  obtained    exclusive 
ownership.      If  neither  owner  has  actual  possession  of  the  land  or  strip  in 
conflict,   the  constructive  possession  will  be  in  the  one  who  has  the  older 
grant.3     A  constructive  possession  to  the  unimproved  part  of  a  tract  which 
two  adverse  claimants  have  claim  to  will  remain  in  him  who  made  the  first 
entry  under  claim  of  title  and  who  improved  a  part  of  the  tract.4 

For  the  junior  grantee  to  acquire  title  by  adverse  possession  to  the  dis- 
puted piece,  his  occupation  must  extend  to  the  land  in  controversy.  If  the 
junior  claimant  occupy  but  a  part  of  the  land  covered  by  his  title,  an  entry 
and  occupation  by  the  owner  of  the  older  title  will  oust  him  from  the  posses- 
sion of  all  the  land  covered  by  the  older  title  except  what  is  actually 
in  possession  of  the  junior  claimant.5 

:i  Amer.  &  Eng.  Ency.  Law  274.  3  i  Amer.  &  Eng.  Ency.  Law  288,  289. 

2  Perry  v.   Lawson   (Ala.),  20  So.  Rep.  *  Jackson  v.  Vermilyea,  6  Cowen  677. 

611.  5  i  Amer.  &  Eng.  Ency.  Law  289. 

*  See  Sec.  521,  stipra. 


§533-  OPERA  TIONS  PREL1MINA  RY    TO    CONS  TR  UCTION.  364 

If  two  persons  are  in  possession,  each  claiming  under  color  of  title,  the 
benefit  of  the  possession  will  be  given  to  the  one  having  the  better  title.1 
Other  things  being  equal,  the  legal  right  will  claim  the  benefit  of  the  posses- 
sion. It  will  be  a  rare  case  that  presents  identically  the  same  circumstances, 
precisely  coeval  and  concurrent.  Priority  of  time  will  in  general  close  the 
door  against  the  later  title  and  occupancy.2 

533.  Color  of  Title  and  Good  Faith. — It  is  often  said  that  good  faith  is 
necessary  to  acquire  land  under  color  of  title.  By  good  faith  is  not  to  be 
understood  honest  belief  by  the  claimant  that  he  has  the  best  title  or  even  any 
title  at  all.  It  is  good  faith  in  claiming  possession  and  title:  the  real  and 
persistent  intention  to  claim  the  possession  as  his  own,  distinct  from  and 
hostile  to  the  owner.  It  is  not  necessary  that  the  claim  of  the  title  should  be 
good  or  even  believed  to  be  good.3  It  is  enough  if  there  be  a  real  intention 
to  assert  and  rely  on  it  as  hostile  to  the  true  owner.  Some  courts  go  so  far 
as  to  declare  that,  however  wrongful  or  fraudulent  the  possession,  or  defective 
the  title,  an  entry  under  claim  of  exclusive  title,  founding  such  claim  upon 
color  of  title,  accompanied  by  the  continued  statutory  possession,  constitutes 
an  effective  adverse  possession.4  This  seems  toxbethe  rule  in  New  York, 
Kansas,  and  Georgia.  The  claimant  may  know  his  color  of  title  is  good  for 
nothing,  and  that  he  has  not  the  remotest  right  to  the  land ;  but  if  he  assert 
and  maintain  his  possession  under  his  worthless  color  of  title,  it  will  ripen 
into  a  good  title.  There  is  some  conflict  as  to  how  innocent  the  occupant 
must  have  been  when  he  accepted  the  conveyance  or  color  of  title.  Fraud 
will  not  be  presumed,  but  if  proven  it  may  destroy  the  color  of  title.  It  has 
been  held  that  no  color  of  title  was  obtained  when  the  occupant  knew  his 
grantor  was  a  mere  squatter.5  His  claim  may  be  invalid  if  he  knew  the 
grantor  had  no  title  to  convey,  or  if  he  obtained  his  deed  by  fraud.6 

What  is  good  faith  is  a  question  for  the  jury,  but  each  particular  case  with 
its  different  circumstances  may  receive  a  different  finding,  depending  upon  the 
intelligence  and  impartiality  of  each  jury.  A  parol  agreement  may  give  color 
of  title  Where  heirs  verbally  agree  between  themselves  for  a  division,  or 
neighbors  exchange  farms,  or  a  father  gives  to  one  of  his  children  a  certain 
tract,  these  acts  have  beenyheld  to  give  good  color  of  title,  sufficient  to  extend 
the  possession  of  a  part  to  the  whole.  For  such  a  verbal  agreement  to 
amount  to  color  of  title,  the  whole  tract  must  be  definite  and  its  limits  deter- 
mined by  some  visible  acts,  signs,  marks,  or  indications  which  are  apparent 
to  all.7 

It  is  doubtless  this  element  of  definite  boundaries,   showing  the  extent 

1  Bellis  v.  Bellis,  122  Mass.  414;  Win-  5  McCarney    v.    Higdon,    50   Ga.    629. 

ter  v.  Stevens,  9  Allen   526;   Crispin    v.  See    Redfield    v.    Parks,    132    U.    S.    239 

Hannovan,  50  Mo.  536.  [1889]. 

3  Simpson  v.  Downing,  23  Wend.  316.  6Saxton  v.  Hunt,  20  N.  J.  Law  487.  But 
3Lantry  v.  Wolff  (Neb.),  68  N.W.  Rep.  see  Cornelius  v.  Giberson,  25  N.  J.  Law  I. 

494.  7 1  Amer.  &  Eng.  Ency.  Law  280. 

4  i  Amer.  &  Eng.  Ency.  Law  288. 


ADVERSE  POSSESSION.  §  S34- 

claimed,  that  gives  an  occupant  title  to  the  whole  when  he  has  occupied  a  part 
under  color  of  title.  Without  something  to  show  how  much  he  intended  to 
claim  when  he  took  possession,  he  might,  when  his  title  had  ripened,  lay  claim 
to  the  whole  county.  A  parol  gift,  accompanied  by  possession  and  a  claim 
of  ownership,  may  constitute  color  of  title,  and  if  the  donee  holds  adversely 
and  as  his  own,  the  possession  will  ripen  into  title. 

Where  an  absolute  gift  of  land  is  made  by  a  father'  to  his  son,  or  by 
a  divorced  husband  to  his  wife,  and  the  donee  takes  and  holds  possession 
under  such  gift,  his  (or  her)  possession  is  adverse  and  continues  so,  and  the 
father  or  husband  is  presumed  to  have  notice  of  such  possession.1  And  one 
in  possession  of  land  under  a  verbal  gift  from  a  person  claiming  adversely  is- 
likewise  in  adverse  possession  under  the  same  claim  by  which  his  donor  held 
it.2  Parol  evidence  of  a  former  owner  showing  a  verbal  gift  of  land  to  a  rail- 
road for  right  of  way,  although  not  admissible  to  establish  an  easement  there- 
in, is  admissible  for  the  purpose  of  showing  that  the  possession  of  the  railroad 
was  adverse.3 

Such  a  parol  gift  conveys  no  title  and  may  be  revoked  at  any  time  before 
the  full  period  has  elapsed,  but  it  may  be  the  beginning  of  an  adverse  posses- 
sion by  the  donee,  which  can  be  repelled  only  by  proof  of  a  subsequent 
recognition  of  the  donor's  better  title.4 

534.  There  can  be  No  Adverse  Possession  against  the  Public  nor  the 
Representative  Government.* — Adverse  possession  cannot  be  held  against 
United  States,  nor  against  the  state  unless  the  state  is  especially  included  in 
the  operation  of  the  statute  of  limitations,  which  gives  right  or  title  under 
adverse  possession.  Individuals  cannot  in  many  states  acquire  rights  against 
the  public  by  adverse  user  of  the  public  highways,  public  parks,  navigable 
streams,  or  other  things  in  which  the  public  has  inherent  rights  and  privileges. 

The  reason  for  this  is  that  if  individuals  were  allowed  to  acquire  adverse 
or  prescriptive  rights  against  the  public  or  the  representative  government,  the 
public  and  the  state  would  be  required  to  watch  their  innumerable  posses- 
sions, public  ways,  and  rights  to  protect  them.  This  they  cannot  do.  The 
business  of  the  government  and  public  being  transmitted  entirely  through 
agents  who  are  numerous  and  scattered,  the  utmost  vigilance  would  not  pro- 
tect the  public  from  losses  and  from  combinations  to  defraud  the  government. 
The  government  is  therefore  exempt  from  the  operation  of  the  statute  which 
gives  rights  by  adverse  possession  upon  the  grounds  of  public  policy  and  not 
upon  the  notion  of  extraordinary  prerogative. 

No  adverse  possession  can  be  had  in  lands  owned  by  the  United  States  or 

1  Thompson  v.  Thompson  (Ky.).  20  S.  2Mexia  v.  Lewis  (Tex.),  21  S.  W.  Rep. 

W.  Rep.  373;    Ross  v.  McCain  (Mo.),  46  1016. 

S.    W.    Rep  955;    Spradlin    v.    Spradlin  3Shepard    v.   Galveston,    H.  &  H.  R. 

(Ky.),     18    S.    W.     Rep.    14;  Schafer   v.  Co.  (Tex.),  22  S.W.  Rep.  267. 

Hauser  (Mich.),  70  N.  W.  Rep.  136.  *  Sumner  v.  Stevens,  6  Met.  337. 

*  See  Sees.  682-685,  infra. 


§  534'  OPERATIONS  PRELIMINARY    TO    CONSTRUCTION.  366 

in  state  lands  unless  by  the  terms  of  the  statute  of  limitations  the  state  is 
expressly  included  within  its  terms.  However,  the  person  in  possession  may 
hold  adversely  against  another  individual  claimant.1  In  some  states  statutes 
have  been  enacted  limiting  the  time  within  which  the  state  may  assert  its  right 
to  land  which  has  been  held  adversely.  These  states  are  Massachusetts, 
Mississippi,  New  York,  North  Carolina,  and  South  Carolina.  In  other  states 
there  is  the  presumption  of  a  grant  after  one  has  had  adverse  possession  for  a 
long  time,  the  period  varying  in  different  states. a 

In  North  Carolina,  Texas,  and  Pennsylvania  the  law  as  to  whether  title  to 
highways,  streets,  parks,  and  other  public  property  can  be  acquired  against  a 
municipal  or  guast -municipal  corporation  by  adverse  possession  is  not 
settled.  Each  side  of  the  question  has  in  its  support  a  long  list  of  authorities. 
The  courts  of  Arkansas,  Connecticut,  Illinois,  Kentucky,  Maryland,  Massa- 
chusetts, Michigan,  Minnesota,  Mississippi,  Missouri,  Nebraska,  New  York, 
North  Carolina,  Ohio,  Texas,  Vermont,  and  West  Virginia  have  held  that  title 
can  be  acquired  against  municipalities.  In  some  of  these  states  it  has  been 
held  that  rights  could  be  acquired  by  adverse  possession  in  streets,  alleys, 
public  squares,  and  highways  owned  by  the  municipality.  On  the  other  hand 
it  has  becn/  held  in  Alabama,  California,  Illinois,  Indiana,  Louisiana, 
Mississippi,  Missouri,  New  Jersey,  New  York,  Pennsylvania,  Rhode  Island, 
South  Carolina,  and  Virginia  that  title  cannot  be  acquired  against  a  munici- 
pality. These  courts  maintain  that  no  encroachment  by  an  individual, 
however  long  continued,  upon  property  held  on  a  public  trust  and  dedicated 
to  the  public  can  confer  any  title  on  the  adverse  occupant,  but  is  a  public 
nuisance  and  may  be  abated  as  such.  Yet  some  of  them  hold  that  as  to 
property  of  which  the  legal  title  is  in  the  municipality  and  which  may  be 
alienated  by  it,  the  municipality  is  subject  to  limitation  laws  to  the  same 
extent  as  private  individuals.3  In  those  states  which  deny  rights  acquired  by 
adverse  possession  it  has  been  held  that  no  parts  of  the  streets  or  highway  or 
public  road  or  a  navigable  river  could  be  acquired  by  adverse  possession. 

The  law  is  so  unsettled  in  regard  to  rights  acquired  by  an  individual  by 
adverse  possession  in  public  lands  and  ways  that  rf  is  impossible  to  make  any 
statement  that  would  have  general  application.  Before  passing  upon  such  a 
question  it  will  be  necessary  to  study  the  cases  of  the  particular  jurisdiction 
in  which  the  case  arises.  The  law  has  had  application  not  only  to  public 
ways  on  land  and  water,  but  also  to  schoolhouse,  fire-engine  house,  and 
hospital  sites,  to  burying-grounds,  poorhouse  tracts,  and  similar  public  in- 
terests.4 

Adverse  possession  may  be  held  of,  and  rights  acquired  in,  land,  water, 

*i  Amer.  &  Eng.  Ency.  Law  (2d  ed.)  *  See  California,  Indiana,  Louisiana,  and 

876.  See  Franceour  v.  Newhouse,  14  Rhode  Island  cases  cited  in  I  Amer.  & 

Sawy.  (U.  S.)  600.  Eng.  Ency.  Law  (2d  ed.)  882. 

2  See  i  Amer.  &  Eng.  Ency.  Law  (2d  *  See  i  Amer.  &  Eng.  Ency.  Law  (2d 

ed.)  878.  ed.)  875-882,  and  cases  collected. 


367  ADVERSE  POSSESSION.  §  536. 

mines,  quarries,  and  anything  which  is  subject  or  incident  to  property  in  land, 
the  possession  and  use  of  which  infringes  the  rights  of  the  owner  and  gives 
him  a  just  cause  of  action  against  the  occupant  or  user  for  trespass  or  in- 
fringement of  his  rights. l  * 

535,  Adverse  Possession  of  Railroad  Right  of  Way.f — Railroads  have 
not  as  a  rule  been  held  to  be  such  guast-public  corporations  as  to  except 
them  from  the  statutes  of  limitations.      Individuals  may  obtain  vested  and 
prescriptive  rights  in  railroad  companies'  rights  of  way  by  adverse  and  con- 
tinued use  for  the  full  period  of  the  statute  of  limitations.2 

A  farmer  may  acquire  title  to  a  strip  of  land  adjoining  a  railroad  track  and 
owned  by  the  railroad  if  he  cultivate  said  strip  for  the  full  statutory  period.3 
Possession  and  cultivation  of  such  strip  will  not  be  an  adverse  holding  if  the 
farmer  has  at  all  times  urged  the  railroad  company  to  complete  the  road 
through  his  farm,  and  has  not,  to  the  knowledge  of  the  officers  of  the  com- 
pany, asserted  a  claim  of  title  to  the  right  of  way.4 

What  constitutes  adverse  possession  is  frequently  held  to  be  a  question  for 
a  jury,  and  it  has  been  held  that  a  charge  that  "  running  a  fence  across  rail- 
road company's  roadbed  not  then  in  use,  or  cultivating  the  same  at  broken 
intervals,  does  not  constitute  adverse  possession,"  is  erroneous  as  invading 
the  province  of  a  jury.5 

The  act  of  laying  pipe-lines  for  oil  in  an  undergrade  private  right  of  way, 
for  wagon  travel  only,  across  the  lands  of  a  railroad  company  is  a  trespass, 
even  though  such  pipes  do  not  injure  the  company's  ownership  of  the  fee,6 
and  equity  has  jurisdiction  to  enjoin  the  use  of  such  pipe-lines  where  the 
pipes  extend  underneath  the  tracks  without  the  owner's  consent.7 

However,  the  right  of  a  railroad  company  to  build,  maintain,  and  use  a 
bridge  over  a  highway  was  held  consistent  with,  and  not  inherently  adverse  to, 
the  right  of  other  persons  to  possess  the  land,  and  to  subject  it  to  a  public 
use,  as  to  lay  a  pipe  beneath  the  surface  of  a  highway.8 

536.  Adverse  Possession  by  Railroad   Companies. — A  railroad  company 
may  hold  adverse  possession  of  the  lands  of  an  individual  or  of  another  com- 
pany, but  the  possession  of  a  street  by  a   railroad  company  under  authority 
given  by  its  charter  is  not  adverse  to  the  public  unless  the  public  be  excluded 
from  the  street.9 

1  See  i  Amer.  &  Eng.  Ency.  Law(2d  ed.)       15  So.  Rep.  935. 

874-  6  United  States  Pipe-line  Co.  v.  Dela- 

2  Railroad    Co.    v.   Houghton,    126   111.  ware,  L  .&  W.  R.  Co.  (N.  J.),  41  Atl.  Rep. 
233-  759  [1898]. 

3  111.   Cent.  Ry.  Co.  v.  O  Connor,  39  N.  7  Delaware,  L.  &  W.  R.    Co.  v.  Breck- 
E.  Rep.  563;   Railroad  Co.  v.-  Houghton,  enridge  (N.  J.),  41  Atl.  Rep.  966. 

126  111.  233.  s  penna.    R.    Co.    v.    Breckenridge,   38 

*Halbert    v.    Mayesville,   etc.,   R.   Co.  Atl.  Rep.  740. 

(Ky.),  33  S.  W.  Rep.  1121.  9  Wayzata   v.  Gt.     Northern    Ry.    Co. 

6  Nashville,  etc.,  Ry.  Co.  v.  Hammond,  (Minn.),  52  N.  W.  Rep.  913. 

*  See  Sees.   107,  185,  212,  262,  and  326,  supra,  and  671-700,  and  726,  infra. 
f  See  Sec.  685,  infra. 


§  536-          OPERATIONS  PRELIMINARY    TO    CONSTRUCTION.  368 

A  railroad  company  claiming  adverse  title  to  a  right  of  way  lawfully  in  the 
possession  of  a  rival  company  by  virtue  of  condemnatory  proceedings,  cannot 
enjoin  the  latter  company  from  proceeding  to  construct  its  road  until  just 
compensation  is  paid  to  the  former  company;  it  being  necessary  that  the  dis- 
puted right  and  title  be  first  settled  at  law. l 

The  mere  construction,  maintenance,  and  occasional  use  by  a  railroad 
company  (which  has  no  conveyance  of  the  land)  of  an  ordinary  railroad  track 
across  a  platted  street  while  it  still  remains  unimproved  and  unfit  for  public 
use,  and  before  public  convenience  or  necessity  requires  it  to  be  opened  and 
improved  for  use  as  a  street,  does  not  constitute  adverse  possession,  as  against 
the  public.  Such  occupancy  must  be  presumed  to  be  subject  to  the  para- 
mount right  of  the  public.2 

The  act  of  a  railroad  in  attempting  to  condemn  land  has  been  held  a 
recognition  of  the  owner's  title.3 

^anawha,  G.  J.  &  E.  R.  Co.  v.  Glen  luth,  76  N.  W  Rep.  35. 

Jean,    L.    L.    &    D.  W.  R.   Co.,  308.  E.  3  Nebraska  Ry.  Co.  v.  Culver  (Neb.), 

Rep.  86.  52  N.  W.  Rep.  886. 

2  St.    Paul   &   D.  R.  Co.  v.  City  of  Du- 


CHAPTER   XXIX. 

CONSTRUCTION,    INTERPRETATION,   AND   APPLICATION   OF 

DESCRIPTIONS. 
I 

541.  Descriptions  in  Deeds  and  Conveyances. — Probably  the  most  puz- 
zling  of  a    surveyor's   duties    are   those   of    understanding    and   interpreting 
descriptions  of  deeds.      Frequently  drawn  up  by  members  of  the  legal  profes- 
sion or  by  ignorant  grantors,  and  copied  by  careless  clerks,  they  come  to  his 
hands  in  a  condition  that  sometimes  provokes  exasperation.      He  often  finds 
particular  and  general  descriptions  in  conflict,  parts  omitted,  "north"  written 
for  "south",  figures  misplaced,  and  many  other  mistakes  and  misconstructions 
peculiar  to  the  vagaries  of  man.      What  parts  shall  a  surveyor  regard  under 
certain  circumstances;  how  much  shall  he  require;  what  shall  he  consider  and 
accept  of  evidence  offered  by  outsiders  or  by  the  parties  themselves  ?     These 
are  questions  which  should  be  of  interest  to  a  surveyor.     He  should  also 
know  how  a  court  regards  them,  and  what  it  will  receive  and  consider. 

542.  Parol   Proof  of  Deeds   and  Descriptions. — Mistakes  are  made   in 
surveys  and  in  descriptions  of  surveys  and  in  the  copying  of  deeds,  and  it  is 
often  a  question  of  importance  as  to  how  far  these  mistakes  may  be  explained 
or  co-rected  in  the  courts.      It  is  a  general  rule  that    parol   evidence  is  not 
admissible  to  alter,  vary,  or  contradict  a  written   instrument,  but  when  there 
is  uncertainty  or  ambiguity  this  rule  is  not  to  be  construed   in  the  strictest 
sense.       Courts  have   made  a  distinction    between  what  they  term  a   latent 
and  a  patent  ambiguity.      If  the  description   is  so   blind  that  the    court    is 
unable  to  ascertain  the  intention  of  the  grantor,  aided  by  the  evidence  of  all 
the  material   circumstances   of  the   case,    then  it  is   designated   as    a  patent 
ambiguity,  and  the  court  will  declare  the  instrument  inoperative  and  void, 
because  to  hold  otherwise  would  be  to  make  a  new  instrument ;  but  if,  on  the 
contrary,  the  court  finds  by  inquiry  into  the  surrounding  circumstances  that 
the  description  shows  clearly  and  conclusively  the  intention  of  the  grantor, 
then  the  ambiguity  is  latent,  though  the  identity  of  the  persons  or  property  is 
doubtful  and  uncertain.      In  such  a  case,  for  the  purpose  of  determining  the 
parties,  the  subject-matter,  or  the  quantity,  the  court  may  inquire  into  every 
material  fact  pertaining  to  the  persons  or  the  property.1 

1  Best  (Chamb.)  on  Evidence  232,  233. 

369 


§  542-  OPERATIONS  PRELIMINARY    TO    CONSTRUCTION.  3/0 

If  an  inslrument  fairly  and  fully  represents  the  intent  of  the  parties  at  the 
time  of  its  execution,  the  duty  of  the  court  becomes  merely  one  of  interpreta- 
tion and  construction  of  the  language  employed,  the  object  being  to  ascertain 
the  express  meaning  of  the  parties.  If  that  meaning  can  be  ascertained,  it 
cannot  be  controverted  by  any  outside  evidence.  No  new  words  can  be 
added,  and  the  court  will  not  travel  out  of  the  four  corners  of  the  paper  to 
determine  the  intention. l  Parol  evidence  cannot  be  given  to  show  that  the 
grantor  of  a  deed  intended  a  different  boundary-line  from  that  actually  desig- 
nated as  the  division-line.2 

Exceptions  are  made  where  parol  evidence  is  admitted  to  explain  or  even 
to  contradict  a  written  contract  or  deed.  Thus  evidence  "may  be  introduced 
to  show  (i)  that  the  instrument  was  procured  by  fraud  or  misrepresentation, 
or  (2)  by  duress,  or  (3)  was  executed  for  purposes  forbidden  by  law,  or  (4) 
was  executed  by  some  person  legally  incompetent,  or  (5)  was  founded  upon 
a  mistake  of  material  facts,  or  (6)  that  the  instrument  was  always  inchoate  or 
conditional,  or  (7)  that  it  has  been  in  part  or  wholly  discharged  or  modified 
by  subsequent  agreement,  or  (8)  that  a  new  agreement  has  been  substituted 
by  consent  of  the  parties."  To  enable  a  jury  to  decide  these  questions  any 
evidence  of  surrounding  circumstances,  or  that  partakes  of  the  nature  of  expla- 
nation, or  is  reasonably  calculated  to  place  them  in  the  situation  of  the  parties 
at  the  time  of  execution  of  the  deed  will,  in  general,  be  received.  The  instru- 
ment itself  must  contain  the  intention  of  the  parties  or  it  will  be  void  and 
inoperative;  the  intention  must  be  determined  from  the  contract,  deed,  or 
will ;  no  direct  evidence  of  expression  of  intention  can  be  introduced. 
Evidence  such  as  explains  the  meaning  of  words,  of  signs,  abbreviations, 
figures,  and  diagrams,  such  as  shows  whether  any  person  or  property  exists 
that  answers  the  description  of  the  instrument,  or  shows  if  the  grantor  or 
testator  possessed  any  such  estate,  is  explanatory  evidence,  and  is  admissible 
in  all  cases  where  any  ambiguity  or  uncertainty  exists.  Evidence  that  shows 
outside  relations  of  the  parties  or  that  will  place  the  court  in  the  position  of 
the  parties  will  be  admitted.  Where  part  of  a  contract  is  written  and  part 
unwritten,  the  part  unwritten  may  be  shown  by  evidence  if  it  be  not  repugnant 
to,  or  inconsistent  with,  what  is  written.3  Parol  evidence  may  be  introduced 
to  explain  an  ambiguity  in  a  deed,  but  not  to  enlarge  or  vary  its  terms.  If 
the  description  identifies  the  premises  intended  to  be  conveyed,  it  is  sufficient. 
For  the  purpose  of  sustaining  a  grant  extrinsic  evidence  may  be  introduced  to 
identify  and  establish  the  objects  and  calls  in  a  deed.4 

Parol  evidence  is  admissible  to  fix  a  boundary  which  is  variable,  to  show 
the  location  of  a  stake  or  stones  referred  to  in  the  deed  as  a  monument,  or  to 
locate  the  boundaries  where  an  ambiguity  exists  on  the  face  of  a  deed.5  Such 

1  Best  (Chamb.)  on  Evidence  231,  232.  3  Brown  v.  Byne,  3  El.  &  Bl.  703. 

2  Fuller  v.  Weaver  (Pa.  Sup.),  34  Atl.  4  Stevens  v.  Wait,  112  111.  544. 

Rep.  634.  5Opdyke    v.    Stephens,  4    Dutcher    89; 


371  APPLICATION   OF  DESCRIPTIONS.  §  543. 

evidence  is  not  objectionable  on  the  ground  that  it  alters,  varies,  or  contra- 
dicts the  written  instrument.1 

The  record  of  a  survey  by  a  county  surveyor,  though  it  was  not  legally 
made,  is  competent  evidence,  as  tending  to  show  the  location  of  the  line  in 
dispute;2  though  such  return  and  map  are  not  admissible  to  vary  the  clear 
terms  of  a  survey,  they  are  admissible  to  shed  such  light  on  the  true  location 
as  they  afford. 3 

543,  Sufficiency  of  Description.— Land  is  described  in  five  ways:  (i)  by 
natural  boundaries,  as  streams,  ponds,  and  natural  objects;  (2)  by  artificial 
boundaries,  as  walls,  fences,  and  monuments;  (3)  by  geometrical  lines  and 
angles,  called  metes  and  bounds,  or  distances  and  courses;  (4)  by  lines  and 
corners  of  adjoining  or  abutting  estates;  (5)  by  the  numbers  of  lots,  sections, 
ranges,  townships,  and  other  designated  subdivisions  of  a  city,  county,  or 
state.  Frequently  two  or  more  of  these  methods  of  describing  land  are 
employed,  for  greater  clearness  and  precision  or  for  different  parts  of  the  field. 
Descriptions  are  not  confined  to  any  particular  class.  Regard  should  be  had 
for  the  natural  features  of  the  estate,  the  earlier  descriptions,  and  sometimes 
the  wishes  and  even  the  whims  of  the  parties.  Many  questions  arise  as  to 
the  meaning  of  the  terms  "adjoining,"  "abutting,"  "appurtenant"  ;  as  to 
what  calls  govern  when  two  descriptions  of  the  same  tract  are  in  conflict;  and 
as  to  the  sufficiency  of  the  description. 

It  may  seem  that  almost  any  description  is  sufficient  in  a  conveyance  of 
land,  yet  it  is  an  unfortunate  circumstance  to  have  any  ambiguity  in  the 
description  of  the  subject-matter  of  the  deed.  Witnesses  die  or  move  away, 
facts  are  forgotten,  maps  and  manuscripts  destroyed,  and  the  land  itself  is 
subject  to  change  by  erosion,  accretion,  subsidence,  and  disintegration. 
The  drafting  of  a  description  is^a  task  that  demands  scrupulous  care  and 
certainty.  It  should  not  be  done  in  haste,  and  should  be  read  and  reread 
and  every  part  verified  and  made  complete. 

Of  the  several  methods  of  describing,  that  by  monuments  checked  by 
courses  and  distances  is  without  doubt  the  most  certain  and  satisfactory.4 
The  main  thing  to  be  considered  is  certainty.  A  lack  of  care  in  describing 
boundaries  is  usually  the  chief  cause  of  trouble  in  determining  them.  Prob- 
ably there  are  few  surveyors  and  engineers  who  have  not  met  in  their  practice 
descriptions  which  have  been  ridiculous  as  descriptions,  but  which  as  a 
means  of  determining  the  boundaries  of  an  estate  have  been  found  far  from 
amusing,  or  even  interesting.  One  that  shows  an  utter  lack  of  foresight, 
as  well  as  of  after-thought,  is  the  following:  "  Beginning  at  an  iron  pin  set 
in  the  ground  about  eighteen  inches  from  the  northeast  corner  of  where 

Brown  v.  Willey,  42  Penn.  St.  205;  Gree-  [1873]. 

ley  v.   Weaver  (Me.),   13   Atl.   Rep.   575  2  Holliday  v.   Maddox   (Kan.),  18  Pac. 

[1888];     Reynolds   v.    Boston    Rub.    Co.  Rep.  290  [1888].. 

(Mass.),  35  N.  E.  Rep.  677.  3  Curtis  v.  Aronson,  7  Atl.  Rep.  886. 

1  Raymond    v.    Coffey,    5    Oregon    132          42  Amer.  &  Eng.  Ency.  Law  499. 


§  544-  OPERATIONS  PRELIMINARY    TO    CONSTRUCTION.  372 

Sidney  Huntington's  coal-house  formerly  stood,"  etc.;  or  the  following: 
"  Thence,  S.  45  degrees  E.,  ninety  feet,  to  a  stake  and  stones  in  range  of  a 
large  rock  near  the  bow  of  the  schooners  Peru  and  Avenger,  when  building; 
thence,"  etc.  These  might  perhaps  be  preserved  as  precedents  in  conveyanc- 
ing when  it  is  necessary  to  be  certain  to  a  common  intent  only.1 

5-14.  A  Description  is  Sufficient  if  the  Land  can  be  Located. — Where  the 
words  employed  to  describe  a  tract  of  land  fail  to  do  so  in  such  a  manner  as 
to  show  what  tract  was  intended,  the  deed  will  be  void  for  uncertainty  of 
description.  If  the  description  include  a  number  of  particulars,  all  of  which 
are  essential  to  ascertain  the  identity  of  the  tract,  no  estate  will  pass  except 
such  as  will  agree  with  every  part  of  the  description;  but  if  the  tract  intended 
to  be  conveyed  is  indicated  with  reasonable  certainty,  it  will  pass  by  the  con- 
veyance. The  intention  of  the  parties  will  prevail.2  If  the  description  be  so 
definite  and  certain  that  a  competent  surveyor,  with  the  records  before  him, 
can  locate  the  land,  it  is  sufficient.3  The  points  or  monuments  of  the 
boundary  must  be  capable  of  being  located  with  certainty.  A  stake  must  be 
fixed  more  definitely  than  when  it  was  determined  as  somewhere  within  a 
space  covered  by  a  circle  the  radius  of  which  was  fifty  feet  or  more.4 

Property  is  often  located  by  reference  to  a  railroad  line  or  to  the  right  of 
way  of  a  railroad,  and  this  has  been  repeatedly  declared  a  good  description.5 
A  deed  to  a  railroad  company  of  a  right  of  way  "  along  the  line  as  surveyed 
and  laid  out"  by  the  company's  engineer  is  sufficiently  certain,  the  line 
having  been  surveyed  and  distinctly  marked  by  stakes  stuck  in  the  ground.6 
This  was  so  held  even  when  the  survey  consisted  merely  of  walking  over  the 
land  and  suggesting  a  line,  and  marking  the  line  on  the  fences  with  a  knife.7 
A  deed  conveying  the  land  south  of  a  "railway  cut"  was  held  to  convey 
only  the  land  south  of  the  upper  and  outer  edge  of  the  cut. 8 

Land  was  held  sufficiently  described  when  the  deed  called  for  a  well- 
ascertained  beginning  point,  whence  the  line  was  to  be  run  to  a  designated 
monument,  and  then  gave  the  course  of  every  other  call  in  the  description.9 

545.  Conflicting  Parts  of  Description  will  be  Reconciled  if  Possible. — A 
deed  is  to  be  construed  so  as  to  make  it  effectual  if  it  be  possible.  When  one 
part  of  the  description  is  false  or  impossible  it  will  be  rejected  if  what  remains 

1  39  Alb.  Law  Jour.  199,  219.  6  Thompson  v.  Southern  Cal.  M.  R.  Co. 

2  McLaughlin  v.  Bishop,  35  N.  J.  Law  (Cal.),    23    Pac.    Rep.    130;    Owensboro, 
512  [1872];  Holmes  v.  Strautman,  35  Mo.  etc.,  R.  Co.    v.   Barker   (Ky.)(  37  S.  W. 
29^  [1864].  Rep.   848;  Denver,  etc.,  Ry.  Co.  v.  Lock- 

3Dunstan  v.  Jamestown,  72  N.  W.  Rep.  wood  (Kans.),  38   Pac.   Rep.   794;,  Joplin 

899;  Carter    v.    Chavalier    (Ala.),  19  So.  C.  M.   Co.  v.  Joplin  (Mo.  Sup.),  27  S.  W. 

Rep.  798;  Campbell  v,  Carruth  (Fla.),  13  Rep.  406. 

Se.  Rep.  432;  Smith  v.  Newell  (U.  S.  C.  7Ohio  River  R   Co.  v.  Schon  (W.  Va.), 

C.),  86  Fed.  Rep.  56.  n  S.  E.  Rep.  18. 

4Wilkeson  Coal  &  Coke  Co.  v.  Driver  8  Newton    v.    Louisville   &   N.    R.  Co. 

(Wash  ).  43  Pac.  Rep.  889.  (Ala.),  19  So.  Rep.  19. 

5  McDonald    v,   Bayne  (Ind.),  16  N.  E.  9Muir  v.  Meredith  (Cal.),  22  Pac.  Rep< 

Rep.  795  [1888].  1080. 


373  APPLICATION  OF  DESCRIPTIONS.  §546. 

will  make  a  complete  description.1  That  part  which  is  certain  must  prevail 
over  what  is  uncertain.2  If  the  boundaries  mentioned  be  inconsistent  with 
each  other,  those  will  be  retained  which  best  describe  the  intention  manifested 
on  the  face  of  the  deed.3 

A  deed  to  land  which  gives  an  incorrect  description  thereof  by  metes  and 
bounds,  and  also  a  correct  description  by  lot  numbers  as  shown  on  a  map 
referred  to,  is  sufficient  to  pass  the  title,  the  incorrect  description  being 
rejected.4 

Where  a  description  of  land  in  an  execution  levy  was,  ' '  the  undivided  ^ 
of  the  following  described  land,  to  wit,  the  S.  E.  £  of  the  N.  W.  £,  and  the 
S.  W.  ^  of  the  N.  E.  £, "  while  in  subsequent  proceedings  the  description 
was,  "  the  undivided  |  of  the  S.  E.  ±  of  the  N.  W.  ±,  and  the  S.  W.  J  of 
the  N.  E.  ^, "  it  was  held  that  the  latter  description  meant  the  undivided  ^ 
of  the  S.  W.  £  of  the  N.  E.  £,  as  well  as  the  undivided  £  of  the  S.  E.  \  of 
the  N.  W.  i,  and  that  both  descriptions  were  therefore  identical  and  could 
not  mislead  any  one.5 

Every  call  in  a  description  must  be  answered  if  it  can  be  done,  and  none 
is  to  be  rejected  if  all  the  parts  can  stand  consistently  together;  6  but  a  deed 
will  always  be  construed  according  to  the  condition  of  things  at  the  date 
thereof,  and  in  the  light  of  facts  known  to  and  in  the  minds  of  the  parties  at 
the  time.7 

A  deed  describing  the  premises  as  certain  lots  as  laid  down  upon  a  map 
does  not  carry  title  to  land  the  title  of  which  became  vested  in  the  owner  of 
the  lots,  after  the  filing  of  the  map,  by  the  vacation  of  the  street  upon  which 
they  abutted.8 

546.  Insufficient,  Imperfect,  and  Ambiguous  Descriptions. — A  deed  will 
be  void  for  uncertainty  of  description  when  the  words  employed  to  describe 
a  tract  of  land  fail  to  show  what  tract  was  intended.9  Premises  upon  which 
a  grant  is  to  operate  must  be  so  described  therein  that  they  can  be  identified 
and  located.10  ;<  They  must  be  so  described  therein,"  for  it  is  well  settled 
that  if  a  description  is  complete  nothing  will  pass  by  a  deed  except  what  is 
described  in  it,  whatever  the  intention  of  the  parties  may  have  been. n 

A  description,  "14  acres  of  land,  a  part  of  the  northeast  quarter  of  the 
southwest  quarter  of  a  certain  section,  town,  range,  county,  and  state, ' '  was 


1  Anderson  v.   Baughman,  7  Mich.  79;  7  Grogan    v.  Burling  Mills,   124  Mass. 
Johnston  v.  Scott,  n  Mich.  232.  390;  Wiley  v.  Sanders,  36  Mich.  60;  Mc- 

2  Richer  v.  Barry,  34  Me.  116;  Tewks-  Connell  v.  Rathbun,  46  Mich.  305;  Min. 
bury  ?'.  French,  44  Mich.  102.  eral  Spgs.  Mfg.  Co.  v.  McCarty,  67  Conn- 

s  Gates  v.  Lewis,  7  Vt.  511.  279. 

*  State  Sav.  Bank  v.  Stewart  (Va.),  25  S.  8  Sanchez  v.  Grace  M.  E.  Church  (Cal.), 

E.  Rep.  543.  46  Pac.  Rep.  2. 

5  Hoffman  v.  Buschman  (Mich.),  55  N.  9  Holmes  v.  Straitman,  35  Mo.  293. 

W.  Rep.  458.  10Coleman    v.  Manhattan   Beach    Imp- 
derrick  v.   Hopkins,  10   Shep.  (Me.)  Co.,  94  N.  Y.  229. 

217.  u  Thayer  v.  Fenton,  108  N.  Y.  394, 


§  54-6.          OPERATIONS   PRELIMINARY    TO    CONSTRUCTION.  374 

held  insufficient,  the  particular  part  not  being  designated.1  Land  described 
as  ' '  lying  on  Laurel,  reference  being  had  to  a  deed  from  J.  R.  to  me  for  a 
more  definite  description,"  is  too  vague  and  uncertain  without  the  introduc- 
tion of  the  deed  referred  to.a 

A  conveyance  of  certain  lands  excepting  30  acres,  where  there  is  nothing 
to  show  what  particular  acres  were  excepted,3  or  one  which  gives  the  metes 
and  bounds  of  the  tract  conveyed  less  certain  lots  already  sold,  without  giving 
the  location  and  boundaries  of  the  lots  sold,  is  defective  and  insufficient.4 
The  description  must  be  such  that  one  can,  from  and  by  it,  go  upon  the  land 
and  identify  the  premises  as  those  conveyed  by  the  deed.5 

A  description  which  is  defective  will  not  be  cured  by  reference  to  another 
deed  in  which  the  description  is  no  more  definite.6  A  line  described  as 
* '  beginning  by  the  mouth  of  B.  creek  and  running  straight  to  the  white  oak 
at  the  southwest  corner  of  the  lo-acre  survey  owned  by  plaintiff"  was  held 
insufficient  to  identify  the  land.7 

A  description  of  a  road  which  makes  it  follow  a  specific  line  "as  near  as 
practicable"  does  not  locate  a  road  anywhere;  nor  is  the  defect  cured  by 
subsequent  survey  upon  a  definite  line.8 

Where  the  map  and  description  show  that  the  calls  for  the  boundary  of  the 
grant  are  impossible  calls;  that  the  surveyor  was  not  on  the  ground,  and  was 
mistaken  as  to  the  locality  of  the  natural  objects  on  which  he  relied  for 
description;  and  that  no  surveyor  can  by  those  calls  locate  or  identify  the 
land,  the  conveyance  is  insufficient.9 

Where  the  metes  and  bounds  describing  the  land  of  a  corporation  utterly 
fail  to  inclose  any  area  whatever  and  are  so  uncertain  as  to  make  it  impossible 
to  determine  the  territory  of  such  corporation,  an  organization  of  municipal 
government  incorporated  under  such  a  description  will  be  a  nullity.10  A  judg- 
ment ordering  the  sale  of  real  estate  "  beginning  at  Pike  street,  on  the  east 
side  of  York  street,  in  this  city,  running  thence  N.  296^  feet,  more  or  less," 
does  not  sufficiently  describe  the  property.11  Deeds  purporting  to  convey 
land,  but  containing  no  description  or  designation  thereof,  are  invalid,  and 
cannot  be  read  in  evidence.12 

If  the  description  does  not  show  the  state  and  county  in  which  the  land 

1McRoberts  v.   McArthur  (Minn.),   34  7  Harris    v.    Johnson   (Ky.).    44   S.  W 

N.  W.  Rep.  903.  Rep.  948  [1898]. 

2  Reed  v.  Reed,  93  N.  C.  462  [1885].  8  Sonnek   v.  Minnesota  Lake    (Minn.), 

3Zundel  v.  Baldwin  (Ala.),  21  So.  Rep.  52  N.  W.  Rep.  961. 

420;  Halley  v.  Fontaine  (Tex.),  33  S.  W.  9  Scull   v.  United    States,   98  U.  S.  410 

Rep.  260;  Blakey  v.  Morris  (Va.),  17  S.  [1878]. 

E.  Rep.  126.  10  Enterprise  v.  State  (Fla.).ioSo.  Rep. 

4  People  v.  Mariposa    Co.,   31  Cal.  196  740;  Watervliet  v.  Colonie  (Sup.),  50  N. 

[1866].  Y.  Supp.  487. 

5Daugherty  v.  Gates  (Tex.),  35  S.  W.  "Meyer  v.  Covington   (Ky.),  45  S.  W. 

Rep.  937.  Rep.  769  [1898]. 

6  Halley   v.   Fontaine   (Tex.),  33    S.  W.  12  Wilson  v.  Johnson  (Ind.  Sup.),  38  N. 

Rep.  260.  E.  Rep.  38. 


375  APPLICATION  OF  DESCRIPTIONS. 

is  situated,  the  meridian  to  which  the  range  should  be  referred,  or  whether 
the  township  named  in  the  description  is  north  or  south,  it  is  insufficient  for 
title;1  but  a  deed  which  describes  land  by  section,  township,  and  range, 
without  mentioning  the  meridian,  county,  or  state,  but  which  describes  the 
grantor  as  being  of  a  county  and  state  wherein  he  owned  land  answering  the 
description  in  the  deed,  has  been  held  sufficient  to  pass  title  thereto.2  A 
deed  purporting  to  convey  "the  southeastern  corner"  of  a  certain  quarter- 
section,  or  "the  southwestern  fractional  part  of  the  north  one-half"  of  a 
specified  quarter-section,  without  any  dimensions,  quantity,  or  locations,  is 
void  for  uncertainty.3 

547.  Surplusage  in  a  Description  will  be  Rejected. — If  the  description 
contain  surplusage  or  more  calls  than  are  necessary  for  the  proper  location  of 
the  land,  or  if  it  be  duplicated,  part  of  the  calls  may  be  ignored  if  the  descrip- 
tion will  be  complete  without  them.4     When  one  of  the  courses  of  a  survey  is- 
given  wrongly,  yet  from  the  correct  courses  and  distances  which  are  given  it 
is  possible  to  complete  the  description  by  metes  and  bounds,  the  deed  will 
not  be  void  for  uncertainty.5     When,  in  a  deed,  land  is  described  by  metes 
and  bounds,  one  of  the  boundaries  being  given  as  "east   200  feet  by  other 
land  of  said  grantor  on  the  passageway,"  and  it  appears  that  no  passageway 
in  fact  exists,  the  clause  in  respect  thereto  may  be  omitted.6 

If  a  part  of  a  description  is  senseless  and  unmeaning,  it  will  be  rejected  as: 
surplusage  if  what  remains  will  make  the  description  certain.  Thus  where  a 
tract  is  described  by  metes  and  bounds  giving  the  courses  and  distances,  and 
the  southeast  and  west  bounds  of  a  tract  are  given  with  certainty,  but  the 
closing  line  is  given  in  a  direction  which  would  not  close  at  all,  the  bearing 
of  the  said  line  should  be  rejected,  leaving  the  description  to  read,  "  thence  to 
the  point  of  beginning."  1 

If  the  description  in  a  deed  comprehends  several  particulars,  all  of  which 
are  necessary  to  ascertain  the  land  conveyed,  they  must  all  be  proved;  and  if 
unnecessary  particulars  are  added  which  are  not  true,  they  will  not  vitiate  the 
deed.8 

548.  A   Particular   Description  will  Control  a   General  Reference   or 
General   Description. — If  the  land  conveyed  is   described   by  reference   to 

xHartigan    v.     Hoffman     (Wash.),    47  4  Sullivan  v.  Collins  (Col.  Sup.),  39  Pac. 

Pac.    Rep.   217;  Halliday    v.  Hess   (111.),  Rep.  334;  Bray  v.  Adams  (Mo.  Sup.),  21 

35  N.  E.  Rep.  380.  S.    W.     Rep.    853;    Stark    v.    Spaulding 

2  Garden   City   S.    Co.   v.    Miller    (111.  (Ky.),  39  S.  W.  Rep.  234. 

Sup.),  41  N.  E.  Rep.  753.   AnafsesMeev.  5  Robinson    v.    Allison    (Ala.),    19    So. 

Benedict   (Mich.),    57    N.  W.    Rep.    175;  Rep.  837. 

Hitchcock  v.  Southern  1.  &  T.  Co.  (Tenn.  6  Treak  v.  Joslyn,  139  Mass.  94. 

Ch.  App.),  38  S.  W.  Rep.  588.  'Stevens  v.  Wait,   112  111.   544;   Wood- 

3  Morse  v.   Stockman  (Wis.),  40  N.  W.  ward  v.  Nims,  130  Mass.  70  [1881]. 
Rep.     679     [1889];     Tierney    v.    Brown  8Worthington    v.    Hylyer,  4  Marr.  R. 
(Miss.),  5  So.   Rep.   104  [1889];    Jones  v.  196;  Jackson    v.  Clark,  7  Johns.   R.    217; 
Brinkley    (N.    C.),    29    S.    E.    Rep.   ,221  Wilson  v.  Riddick  (Iowa),  69  N.  W.  Rep. 
[1898].  1039. 


§549-          OPERATIONS  PRELIMINARY    TO    CONSTRUCTION.  3/6 

known  boundaries  and  monuments,  the  land  so  described  cannot  be  restricted 
or  enlarged  by  a  subsequent  (general)  reference  to  the  title-deeds  under  which 
the  grantor  holds,  even  if  such  reference  is  in  the  same  deed. l  An  accurate 
description  of  permanent  boundaries  capable  of  being  ascertained  will  limit 
the  conveyance;  and  general  references  implying  an  addition  to  the  premises 
in  possession  of  the  grantor  or  grantee  will  not  pass  title  to  land  outside  of 
the  particular  description.2  * 

It  is  a  well-known  rule  of  construction  that  a  precedent  particular  descrip- 
tion shall  not  be  impaired  by  a  subsequent  general  description.  All  parts 
should  be  made  to  harmonize  if  possible,  but  if  they  cannot  be  made  to  accord 
then  the  general  description  must  give  way  to  the  particular  one.3  If  the  pre- 
cedent particular  description  fails,  if  it  is  unintelligible  and  inapplicable,  then 
there  is  another  rule  of  law;  a  rule  that  what  is  most  material  and  most  cer- 
tain will  control  that  which  is  less  material  and  less  certain.4  That  which  is 
clear  and  certain  should  always  control  that  which  is  uncertain  and  senseless. 

A  clause  at  the  end  of  a  particular  description  by  metes  and  bounds, 
"  meaning  and  intending  to  convey  the  same  premises  conveyed  to  me,"  is 
merely  a  help  to  trace  the  title,  and  does  not  enlarge  the  grant.5 

549.  A  General  Description  will  Answer  if  the  Particular  Description 
Fail. — If  the  whole  description  is  sufficient  to  ascertain  the  estate  intended  to 
be  conveyed,  and  if  the  intention  to  convey  that  particular  tract  is  clear 
although  an  incorrect  specific  or  particular  description  has  been  given,  and 
although  this  fails  to  agree  with  some  other  particulars  in  the  description,  yet 
title  to  the  tract  shall  pass  in  order  that  the  intent  of  the  parties  may  be 
effected.6  Thus  a  manifestly  erroneous  statement  of  a  monument  will  not 
defeat  the  deed  if  the  remaining  description  will  locate  the  land.7 

Where  a  line  was  described  as  '  *  beginning  at  the  sign -board  on  the  north 
line  of  the  N.  E.  quarter  of  section  17,  in  township  i,  north,  range  2,  west, 
where  two  roads  described  intersect,  running  thence,"  etc.,  such  description 
was  held  to  be  sufficient  under  the  rule  that  the  line  need  not  be  described 
with  technical  certainty,  but  only  so  as  to  enable  a  surveyor,  with  the  assist- 
ance of  points  definitely  named,  to  trace  and  designate  it.8 

Where  land  is  described  by  a  general  description,  which  is  followed  by 
metes  and  bounds,  and  it  is  clear  from  the  circumstances  that  the  general 
description  is  correct  and  that  the  description  by  metes  and  bounds  includes 

1  Morrow  v.  Will^rd,  30  Vt.  118.  Laughlin    v.    Bishop,  35    N.  J.    Law  512 

2Thayer  v.  Fenton,  108  N.  Y.  394.  [1872]. 

3  Wheaton  v.  Brick  (N.  J.),  8  Atl.  Rep.  7  Benton   v.  Mclntire  (N.   H.),  15  Atl. 
529  [1887];  Carter  v.  Chevalier  (Ala.),  19  Rep.  413  [1888]. 

So.  Rep.  798.  8  Wells  v.  Rhodes  (Ind.),  16  N.  E.  Rep. 

4  Colter  v.  Mann,  18  Minn.  96.  830  [1889];   Adams    v.  Harrington,  14  N. 

5  Brown  v.  Heard,  85  Me.  294.  E.  Rep.  603. 

6  Colter   v.    Mann,    18    Minn.    96;  Mc- 

*  See  Sees.  611-615,  infra. 


377  APPLICATION   OF  DESCRIPTIONS.  §  55O. 

property  not  owned  by  the  grantor  and  evidently  not  intended  to  be  conveyed 
by  him,  the  general  description  will  hold  and  control.1 

In  tracing  county  lines  the  general  rule  is  that  "  monuments  control 
courses,  and  a  specific  course  will  control  a  general  course";  but  where  a 
monument  is  uncertain  a  general  course  may  be  taken  into  consideration,  in 
connection  with  other  facts  and  circumstances,  for  the  purpose  of  ascertaining 
and  identifying  such  monument.2 

If  a  deed  describe  the  land  conveyed  by  courses  and  monuments  and 
boundary-lines  of  other  tracts,  and  then  declares  that  the  description  given  is 
to  be  according  to  a  survey  theretofore  made  by  a  person  named,  such  survey 
is  incorporated  into  the  deed  and  becomes  a  part  of  it,  and  the  grantee 
acquires  title  only  to  the  land  contained  within  the  exterior  boundaries  of 
such  survey. 3  * 

Under  a  conveyance  of  certain  premises  described  (without  specifying  the 
quantity  or  dimensions)  as  lying  in  an  angle  formed  by  certain  streets,  but 
designated  by  a  number  not  corresponding  with  the  number  of  either  of  the 
two  lots  in  such  angle,  it  will  be  presumed  that  the  number  6i  the  lot  was 
misdescribed ;  but  such  conveyance  will  not  include  both  lots  even  though 
they  are  annexed  together.4 

550.  Effect  of  Omissions  in  a  Description. — In  a  description  by  metes 
and  bounds  the  omission  of  one  boundary-line  is  unimportant  if  there  be 
sufficient  data  in  other  parts  of  the  deed  to  show  the  extent  and  limits  of  the 
land  conveyed.5  The  erroneous  mention  of  an  incident  in  the  history  of  the 
title  to  a  piece  of  land  is  held  to  have  no  force,  as  against  the  mention  of 
metes,  bounds,  courses,  distances,  and  visible  monuments,  when  the  question 
is  whether  the  deed  is  sufficient  in  form  to  convey  the  land  intended.6 

Where  parties  claim  through  a  deed  which  describes  the  property  as  a 
certain  part  of  a  block,  and  also  by  the  lot  numbers,  they  are  bound  to  take 
notice  of  the  contents  of  the  deed,  and  of  the  fact  that  the  property  was  known 
by  the  lot  numbers,  even  though  no  plat  was  recorded  at  the  time  of  the  con- 
veyance.7 

For  the  purpose  of  locating  land  conveyed  by  metes  and  bounds  resort 
may  always  be  had  to  extrinsic  evidence;  and  when  uncertainty  or  ambiguity 
arises  in  the  application  of  the  description  to  the  subject-matter  of  the  con- 
veyance, evidence  of  all  the  facts  and  circumstances  of  the  transaction  will  be 
received  for  the  purpose  of  ascertaining  the  intention  of  the  parties.  The 

1  Novotny   v.   Danforth   (S.  D.),  68  N.  5  Woodward    v.    Nims,    130   Mass.   70 

W.  Rep.  749.  [1881]. 

2Hollenbeck  TJ.  Sykes  (Colo.  Sup.),  29          6  Sherwood  v.  Whiting  (Conn.),  8  Atl. 

Pac.  Rep.  380.  Rep.  80  [1887]. 

3  Hudson  v.  Irwin,  50  Cal.  450  [1875].  7  Marvin  v.  Elliot  (Mo.),  12  S.  W.  Rep. 

*  Gordon    v.  Trimmier  (Ga.),  18    S.  E.  899. 
Rep.  404. 

*  See  Sees.  611-615,  infra. 


§  55°-          OPERATIONS  PRELIMINARY    TO    CONSTRUCTION.  3/8 

sense  in  which  the  parties  used  the  ambiguous  term  may  be  ascertained  from 
their  declared  intention.  The  bounds  and  monuments  which  prove  to  be 
indistinctly  or  inaccurately  set  out  in  the  deed  may  be  established  by  proof 
that  they  were  recognized  as  such  by  the  parties.  It  is  only  when  the  terms 
of  the  deed  as  applied  to  the  land  conveyed  create  no  ambiguity  that  evidence 
of  intention  is  excluded. l 

If  ambiguity  or  imperfections  exist  in  the  description  so  as  to  render  it 
doubtful  or  incapable  of  interpretation,  reference  to  the  general  language  as 
well  as  to  all  parts  of  the  deed  will  be  competent  to  identify  the  property 
intended  to  be  conveyed.2  What  has  been  granted,  the  quantity  specified,  the 
boundaries  named,  the  survey,  the  surrounding  circumstances,  the  situation 
of  the  parties,  and  the  object  they  had  in  view,  are  all  competent  evidence  and 
are  to  be  considered  in  order  to  ascertain  the  true  intention  of  the  parties.* 
No  direct  evidence  of  intention  can  be  given  to  contradict  a  description  in  a 
deed,  but  the  court  may  allow  any  evidence  that  will  put  the  court  in  the 
position  of  the  parties,  so  as  to  better  understand  the  written  description.  If 
a  description  can  be  interpreted  with  the  aid  of  such  testimony,  it  will  stand 
and  the  conveyance  be  good;  if  not,  the  deed  will  be  void  for  uncertainty. 
The  courts  have  allowed  evidence  of  surrounding  facts  and  circumstances, 
where  there  was  a  clear  repugnance  between  two  descriptions  of  the  same 
premises  in  the  same  deed,  in  order  to  ascertain  which  is  most  definite  and 
certain. 4 

Where  the  parts  of  a  description  in  a  deed  are  inconsistent  with  each 
other,  effect  should  be  given  to  those  consistent  and  intelligible  portions 
which  carry  out  the  intentions  of  the  parties,  and  what  is  repugnant  thereto 
may  be  rejected.5  The  decisions  have  gone  so  far  as  to  hold  that  it  was 
not  necessary  to  describe  by  boundaries,  courses,  or  distances,  or  by  refer- 
ence to  monuments,  but  to  describe  it  only  so  that  the  property  might  be 
identified. 

In  an  action  involving  the  location  of  a  boundary-line  between  two  city 
lots,  evidence  that  all  the  lots  in  the  block  are  of  uniform  width,  and  that  the 
boundary  claimed  by  defendant  would  render  plaintiff's  lot  six  feet  narrower 
than  any  other  lot  in  the  block,  was  held  to  sustain  a  verdict  in  plaintiff's 
favor. 6 


Chester    Emery   Co.    v.    Lucas,    112  382  [1887];    Piper   v.    Connolly,    108    111. 

Mass.  424  [1873];  Waterman  v.  Johnson,  646  [1884]. 

23  Pick.  261;  Sargent  v.  Adams,  3  Gray  *Wade  v.  Deray,  50   Cal.    376    [1875]; 

72;  Putnam  v.  Bond,  100  Mass.  58;  Cook  Cassidy  v.   Charlestown    Savings    Bank, 

v.  Babcock,  7  Cush.  526;  Stoops  v.  Smith,  149  Mass.  325. 

100  Mass.  63.  5  Raymond    v.    Coffey,    5    Oregon    132 

2Thayer    v.    Fenton,    108    N.    Y.    394  [1873];  West    v.  Bretell  (Mo.),  22   S.  W. 

[1888].      See   Tyler   on    Boundaries    124,  Rep.  705.       Semblf,  Johnson  v.  Williams 

284,  285.  (Sup.),  22  N.  Y.  Supp.  247. 

3Cavazos    v.  Trevino,  6   Wallace  773;  6Goldsborough  v.   Pidduck  (Iowa),  54, 

Elliott  v.   Gilchrist   (N.  H.),  9  Atl.  Rep.  N.  W.  Rep.  431. 


379  APPLICATION  OF  DESCRIPTIONS.  §  551* 

551.  Certain  Parts  of  Description  Omitted  may  be  Supplied. — A  descrip- 
tion is  not  insufficient  because  it  fails  to  state  the  locality,  as  the  county  or 
state,  if  it  contains  some  identifying  circumstances  or  fact,  or  some  connecting 
link,  to  show  where  the  land  in  question  is  situated.  A  description  of  prop- 
erty as  "  all  that  part  of  the  west  half  of  the  northwest  quarter,  section  19, 
township  17,  range  3  west,  that  lies  south  of  Black  Creek,"  neglecting  to  state 
the  county  and  state,  was  held  to  be  sufficiently  clear,  and  that  Black  Creek 
introduced  such  a  landmark  as  to  create  a  latent  ambiguity  and  therefore  to 
admit  of  evidence  to  show  in  what  county  and  state  Black  Creek  crossed  the 
section,  range,  and  township  named,  and  to  show  that  the  grantor  claimed 
and  cultivated  the  same  tract. l 

The  courts  take  judicial  notice  of  the  United  States  Government  surveys,2 
as  of  the  fact  that  there  is  but  one  range  5  in  the  survey  of  the  United  States 
Government  in  what  is  known  as  the  "  Columbus  Land  District,"  and  that 
such  range  is  east.3  If  the  township  and  range  be  not  designated  in  the 
description  and  there  be  several  sections  in  the  county  of  the  number  given, 
parol  evidence  may  be  introduced  to  show  what  section  was  intended,  since 
the  ambiguity  is  latent.4  The  omission  of  the  words  "  quarter  of  "  in  a  deed 
describing  the  land  as  "known  as  the  northwest  quarter  of  the  northwest 

,  section  8,  township  29,  south  of  range   16  E.,  containing  40  acres," 

will  be  supplied  by  construction,  as  a  palpable  omission.5 

Where  a  description  that  gave  the  street,  the  lot  and  block  numbers, 
and  the  county,  omitted  to  state  the  town  or  city,  it  was  held  sufficient,  proof 
being  allowed  that  there  was  no  other  street  of  the  same  name  in  any  other 
city  or  town  in  the  county  named,  and  that  the  grantor  was,  at  the  time  of 
the  grant,  owner  of  the  lot  demised.6  A  description,  as  the  "  west  half  of 
lot  i,  N.  E.  (N.  W.  N.  E.)  sec.  i  F.  6  N.  R.  6  ",  is  sufficient  to  identify  the 
land  as  the  W.  one-half  of  lot  i  in  the  N.  E.  one-fourth  of  said  section, 
though  such  lot  is  in  fact  the  S.  W.  one-fourth  of  the  N.  E.  one-fourth;  the 
letters  in  the  parenthesis  being  immaterial  to  the  description.7 

A  course  described  as  "  4i|-°  E.  "  instead  of  "  N.  4i|-°  E.  "  was  held 
immaterial  error  when  there  was  no  uncertainty  in  the  other  courses, 
distances,  and  monuments.8 

1  Black    v.     Pratt    Coal    &    Coke    Co.  [1874];    Bird    v.    Perkins,    33    Mich.   28 
(Ala.),  5  So.  Rep.  89;  Reisback  v.  Carson  [1875];    Kile  v.  Town   of  Yellowhead,  80 
(Wash.),    13    Pac.    Rep.    618   [1887];   Co-  111.  208.    But  see  People  v.  Mariposa  Co., 
lumbian  Oil  Co.    v,     Blake    (Ind.  App.),  31-  Cal.    196   [1866].  And    see    Hurley  v. 
42    N.  E.  Rep.  234.     See   also    Dorgan  v.  Brown,   98  Mass.  545;    Stoops    v.  Smith, 
Weeks  (Ala.),  5  So.  Rep.  581  [1889].  100     Mass.    63;     Chester    Emery    Co.   v. 

2  Reisback  v.  Carson  (Wash.),  13   Pac.  Lucas,  112  Mass.  435;  Mead    v.   Parker, 
Rep.  618  [1887].  115    Mass.    413;    Van   Brunt   v.  Day,     81 

3  Muse  v.  Richards  (Miss.),  12  So.  Rep.  N.  Y.  251. 

821.  7  Perkins  v.  Bulklev  (111.   Sup.),  46   N. 

*Halliday  v.  Hess  (111.  Sup.),  35  N.  E.  E.  Rep.  733. 

Rep.  380.  8Carr   v.    Berkley   (Mass.),    14    N.    E. 

5  Campbell    v.    Carruth   (Fla.),     13  So.  Rep.     746     [1888];     Warden     v.     Harris 
Rep.  432.  (Tex.),  47  S.  W.  Rep.  834. 

6  Austrian  z/.   Davidson,    21   Minn.  117 


§  552-          OPERATIONS  PRELIMINARY    TO    CONSTRUCTION.  380 

Where  a  recorded  notice  of  location,  in  its  description  of  a  claim, 
erroneously  referred  to  the  "  southeasterly"  end  of  another  claim,  when  the 
claim  had  no  such  boundary,  and  described  a  distance  of  400  feet  as  "4," 
and  gave  the  courses  of  a  certain  boundary-line  as  "northerly"  and 
"  southerly,"  when  the  courses  of  such  line  were  not  true  north  and  south, 
and  the  notice  correctly  described  the  location  with  reference  to  a  well-estab- 
lished line  of  another  claim,  and  with  the  aid  of  the  location  stakes  the  lines 
of  the  claim  could  be  easily  ascertained  by  applying  the  description  of  the 
record  to  the  stakes  and  monuments,  it  was  held  that  the  recorded  description 
was  sufficient.1 

If,  in  a  deed,  a  line  is  described  by  reference  to  a  rock  with  "a  vein  of  iron- 
ore,  ' '  and  if,  where  the  deed  was  made,  there  was  not  a  vein  in  the  rock  on 
the  line  universally  or  generally  known  as  "a  vein  of  iron  ore,"  (though  not 
in  truth  such  a  vein,)  there  was  no  such  latent  ambiguity  in  the  deed  as  to 
admit  parol  evidence  to  explain  its  meaning  and  give  it  a  construction.  It 
is  inoperative  and  void  because  the  monument,  without  which  the  land 
described  cannot  be  found,  does  not  exist. a 

552,  Land  Described  may  be  Shown  to  have  Belonged  to  Grantor, — In 
a  conveyance,  a  description  of  lands  by  section,  township,  and  range,  with- 
out mention  of  the  state,  county,  land-district,  or  government  survey  in  which 
the  lands  lie,  may  be  aided  by  oral  testimony  showing  that,  when  the  convey- 
ance was  made,  the  grantor  owned  and  resided  on  lands,  in  a  given  county  and 
in  a  certain  state,  which  were  known  by  the  same  numbers  as  those  employed 
in  the  conveyance.  Aided  by  such  proof,  and  in  the  absence  of  proof  that 
the  grantor  owned  or  claimed  other  lands  falling  within  the  same  description, 
it  becomes  the  duty  of  the  court  to  pronounce  the  conveyance  valid.3  A 
memorandum  of  sale  of  "  my  right  in  B. 's  (my  father)  estate"  sufficiently 
describes  the  property ;  it  being  shown  that  B.  owned  only  a  homestead,  which 
he  devised  in  equal  shares  to  the  vendor  and  vendee.4  "All  the  land  owned 
by  me  "  in  a  conveyance  was  construed  to  mean  "all  the  land  now  owned  by 
me."5 

To  determine  the  quantity,  location,  or  identity  of  land,  the  court  may 
inquire  into  xall  extrinsic  facts  that  bear  upon  the  subject  when  there  is 
ambiguity.6  A  mistake  in  the  lot  number  may  not  render  a  deed  void  if  it 
can  be  shown  that  the  grantor  owned  a  lot  designated  by  another  number 
which  otherwise  answers  the  description,  and  that  he  did  not  own  the  lot 
named.  Thus  when  he  devised  lot  6  in  a  certain  section  and  township,  when 
he  did  not  own  lot  6,  but  did  own  lot  3,  evidence  thereof  was  admitted  to 

1  Smith  v.  Newell  (C.  C.),  86  Fed.  Rep.  8  Chambers  v.  Ringstaff,  60  Ala.  140. 
56  [1898].                                                                       *  Ryder    v.    Loomis    (Mass.),  36  N.  E. 

2  Cook  v.  Babcock.  7  Cush.  526;  Cleve-       Rep. '836. 

land  v.  Flagg,  4  Cush.  76,  81;  Cornell  zv  5  Fitzgerald  v.  Libby  (Mass.),  22  Reptr. 

Jackson,  9    Met.   150;    Putnam    v.  Bond,  613  [1886]. 

100    Mass.    58;     Chester    Emery    Co.    v.  6  Paine  v.  Upton,  87  N.  Y.  337. 
Lucas,  112  Mass.  424  [1873]. 


38 1  APPLICATION   OF  DESCRIPTIONS.  §  553- 

show  that  the  testator  had  made  a  mistake  and  that  lot  3  was  intended 
instead  of  lot  6.1  A  similar  case  is  reported  where  the  conveyance  called  for 
lot  403  when  the  grantor  did  not  own  lot  403,  but  did  own  lot  406.  It  was 
held  a  plain  case  of  error  on  the  face  of  the  instrument,  a  tripping  of  the  pen.2 
Another  case  holds  that  if  the  description  applies  to  a  certain  tract  of  land  the 
deed  cannot  be  reformed,  so  as  to  make  it  convey  a  different  piece,  on  the 
mere  fact  that  the  grantor  at  the  time  owned  the  latter  and  not  the  former 
tract. 3 

Courts  have  supplied  an  entire  call  apparently  omitted,  as  where  the 
description  read,  "  thence  west  900  poles  to  county  line,  and  with  the  same, 
to  point  of  beginning."  The  9OO-pole  line  being  parallel  to  the  county  line, 
which  was  an  east-and-west  line,  the  court  supplied  the  call  "  thence  south  to 
the  county  line,"  and  had  it  inserted  after  the  words  "900  poles."4  An 
apparent  mistake  in  writing  a  description  wherein  "60  rods"  was  written  for 
"  1 60  rods"  will  not  prevent  the  court  from  interpreting  the  deed  as  intended 
by  the  grantor,  where  it  is  shown  that  such  a  construction  is  necessary 
to  make  the  description  apply  to  the  only  land  owned  by  the  grantor  in  that 
vicinity.5 

553,  When  Description  Applies  to  Two  Estates. — A  grant  that  applies 
equally  to  two  tracts  may  not  fail  for  want  of  certainty  if  the  evident  inten- 
tion of  the  parties  can  be  ascertained  by  evidence.6  The  location  may  be 
determined  by  evidence  of  the  circumstances  surrounding  and  connected  with 
the  parties  and  the  land  at  the  time  of  the  conveyance.7  It  seems  that  the 
grantee  may  elect  as  to  the  one  to  which  he  will  claim  title,  and  the  burden 
is  upon  the  grantor  to  show  his  ownership  of  two  such  tracts,  and  to  show 
that  the  instrument  was  intended  to  convey  this  or  that  particular  one. 8  This 
comes  from  a  rule  of  construction  that  the  language  of  an  instrument  is  to  be 
construed  most  strongly  against  the  person  who  first  used  the  language,  which 
is  usually  the  grantor.9 

Where  the  monuments  established  by  a  plat  are  those  fixed  by  the  govern- 
ment survey,  and  those  making  the  dedication  in  the  actual  location  of  the 
lines  of  the  plat  included  within  the  lines  of  private  property  a  strip  of  land 


1  Patch  v.  White,  117  U.  S.  210.  [1887];  Hurley  v.  Brown,  98  Mass.   545; 

2Kertz  v.   Hibner,  55  111.  514;  Crooks  Mead  v.  Parker,  115  Mass.  413. 

v.  Whitford,  47  Mich.  383,  8  East  149,  7  7 Scales  v.  Henderson  (S.  C.),  22  S    E. 

H.  L.  364,  36  la.  674,  10  Amer.  Law  Reg.  Rep.   724;    Fudickar  v.    East    Riverside 

(N.  S.)  93,  353-  I".    Dist.    (Cal.),    41    Pac.    Rep.     1024; 

3  Kellogg  v.  Hastings,  70  111.  598  [1873].  Simpson  v.  Blaisdell,  85  Me.  199. 

4  Hitchcock    v.    Southern    I.    &  T.  Co.  8  Lente  v.  Clark,  supra. 

(Tenn.),  38    S.  W.  Rep.   588;  Woodward  "Marshall  v.  Niles,  8  Conn.  369;  Ryan 

v.  Nims,  130  Mass.  7o[i88i].      •  v.   Wilson,    9    Mich.     262.     For    a   case 

5  Presnell  v.   Headley  (Mo.),  43    S.  W.  where  the    contention  was    as  to  which 
Rep.  378  [1897).      See  also  Blount  v.  Ble-  fork  or  branch  of  a  stream  was  intended, 
ker  (Tex.),  35  S.  W.  Rep.  863.  or  which  bore  the  name  employed,  in  a 

6 Clark  v.  Powers.  45    111.    283    [1867].  description,  see  Bassett  v.  Martin  (Tex.), 

See  Lente  v.  Clark  (Fla.),  I   So.  Rep.  149  18  S.  W.  Rep.  587. 


§  554-          OPERATIONS   PRELIMINARY   TO    CONSTRUCTION.  382 

which,  according  to  the  true  location,  is  within  the  boundaries  of  the  street, 
the  government  monuments  prevail.1 

A  call  "thence  ...  to  a  stake  on  the  top  of  Looney's  Ridge,"  followed 
by  a  call  "and  with  the  same  N.  88°,  E.  422  poles  to  a  stake,"  was  held  to 
require  the  last  line  to  run  with  the  top  of  the  ridge,  such  natural  boundary 
prevailing  over  the  courses  and  distances  in  case  of  conflict.2 

In  an  action  in  which  the  question  was  the  correct  location  of  the  north- 
east corner  of  section  3,  it  appeared  that  B.,  a  surveyor,  found  what  he 
considered  the  corner-stone  in  a  public  road,  which  defendant  contended  was 
on  the  section-line  between  sections  2  and  3,  and  that  plaintiff  contended 
.such  corner  was  about  25  rods  fast  of  such  stone.  There  was  evidence  that 
.such  road  was  not,  and  no  evidence  that  it  was,  located  on  the  section-line. 
Held  not  error  to  refuse  to  charge  that  a  long-established  road  is  better  evi- 
dence of  actual  boundary  settled  by  practical  location  than  any  survey  made 
after  the  monuments  of  the  original  survey  have  disappeared.3 

A  description  of  a  tract  in  a  deed  as  composed  of  the  parcels  conveyed  in 
six  different  deeds  of  land  lying  on  a  certain  creek  cannot  be  aided  by  parol 
€vidence  as  to  the  identity  of  the  parcels  referred  to,  even  if  it  would  be  com- 
petent to  offer  six  grants  and  prove  that  they  were  located  on  the  creek 
mentioned.4 

Parol  evidence  is  admissible  to  locate  a  tree  called  for  by  a  grant  as  the 
beginning  corner,  at  the  northeast  corner  of  the  lot  referred  to  in  the  grant, 
instead  of  the  southeast  corner  described  therein,  although  it  is  not  permissible 
to  contradict  and  change  the  call  itself,  but  only  the  description  of  its 
location.5 

A  description  of  land  in  proceedings  for  its  sale  in  an  action  by  a  creditor, 
as  ' '  running  from  the  N.  E.  corner  of  the  S.  E.  \  of  section  2 1  due  west  to 
the  N.  W.  corner  of  the  S.  E.  £  of  section  21  to  a  stake,  and  from  thence 
south,"  is  not  ambiguous  so  as  to  authorize  the  admission  of  parol  evidence 
that  there  was  no  stake  at  the  northwest  corner  of  such  quarter-section,  but 
that  the  stake  intended  was  at  the  northwest  corner  of  the  east  half  of  such 
quarter-section . 6 

Parol  evidence  is  admissible  to  show  what  was  really  conveyed  by  a  deed, 
under  the  rule  of  law  that  courses  and  distances  must  yield  to  known  objects.7 

554.  Land  Described  by  Familiar  Name  in  Community. — An  estate  or 
building  described  by  some  name  well  known  and  notorious  will  be  sufficient 
if  its  limits  can  be  exactly  defined;  e.g.,  a  building  described  as  "On  the 

1  Brown    v.    City    of    Carthage    (Mo.  Rep.  152. 

Sup.),  30  S.  W.   Rep.  312.  5  Davidson    v.  Shuler   (N.C.),  26  S.  E. 

2Clarkston    v.  Va.   C.  &  I.  Co.  (Va.),  Rep.   340. 

24    S.     E.     Rep.    937.       See    Gentile     v.  6^Donehoo    v.    Johnson  (Ala.),    21   So. 

Crossan  (N.  M.),  38  Pac.  Rep.  247.  Rep.  70. 

3  Woodbury  v.  Venia  (Mich.),  72  N.  W.  7  Broaddus  v.  Eubanks,  18  Ky.  L.  Rep. 

Rep.  [1897].  742,  38  S.  W.  Rep.  134. 

*Hemphill  v.  Annis  (N.  C.),    26  S.  E. 


383  A  P  PLICA  TION   OF  D  E  SCRIP  TIONS. 

corner  of  Main  and  Monroe  streets  in  Peoria,  known  as  Post-office  Corner";  1 
or  premises  designated  as  "Pelican  Beach  near  Barren  Island  "  ;  2  or  described 
as  "  lot  36  in  the  town  of  Webb,"  in  a  deed  dated  at  Webb,  Miss.,  describing 
the  grantor  as  being  of  Tallahatchie  County.3 

A  description  by  metes  and  bounds  is  not  necessary  where  the  premises 
are  well  known  by  name.4  If  the  property  be  described  by  numbers  or  by 
metes  and  bounds,  extraneous  and  parol  evidence  may  be  admitted  to  ascer- 
tain whether  a  particular  piece  of  property,-  definitely  described  and  ascer- 
tained, constitutes  a  "margin  "  or  "  basin."  5 

To  determine  whether  or  not  the  renting  of  a  house  included  the  ground- 
floor,  which  was  a  store,6  evidence  of  extrinsic  facts  should  be  admissible  to 
ascertain  whether  the  parties  intended  to  include  the  store  in  the  term 
"  house."  If  knowledge  of  intention  will  aid  in  interpreting  the  words  used, 
it  should  be  admitted.7 

Parol  evidence  is  admissible  to  show  that  at  the  time  of  the  conveyance  a 
particular  line  referred  to  in  a  deed  was  generally  recognized  by  the  name 
used  in  the  deed  and  in  the  community.8 

554a.  Land  Described  as  a  Part  of  a  Whole.*  —  In  an  agreement  to 
convey  a  piece  of  land  described  as  "  five  acres,  lot  3,  section  23,"  etc.,  there 
being  nothing  to  show  which  five  acres  were  intended,  it  was  held  to  be  a 
case  in  which  evidence  could  not  be  introduced  to  supply  the  defect  in  the 
description.9 

A  deed  describing  the  land  conveyed  merely  as  so  many  acres  to  be  taken 
by  the  grantee  from  a  larger  tract,  wherever  he  may  select,  is  not  void  for 
uncertainty;  10  but  one  describing  land  as  "  two-thirds  "  of  certain  lots,  with- 
out identifying  what  particular  two-thirds  was  intended,  is  void.11 

A  description  of  "1377  acres  of  land,  situated  in  the  county  of  Young, 
in  the  state  of  Texas,  surveyed  and  patented  by  virtue  of  my  head-right 
certificate,"  is  not  void  for  uncertainty  on  its  face,  as,  so  far  as  the  deed  dis- 
closes, the  entire  tract  may  have  contained  only  1377  acres.12  A  description 
in  a  deed  as  the  "west  part,  N.  E.  quarter,  N.  W.  quarter,  twenty  acres," 
of  a  certain  section,  is  sufficiently  definite,  the  words  "twenty  acres"  show- 


v.  Puterbaugh,  108  111.  602.  58  N.  W.  Rep.  590;  Grier  v.  Puterbaugh, 

'Coleman   v.    Manhattan    Beach    Imp.  108  111.  602  [1884]. 

Co.,  94  N.  Y.  229  [1883].  9  Nippolt  v.  Kammon  (Mich.),  40  N.  W. 

3Wilkerson    v.    Webb    (Miss.),    23    So.  Rep.  266  [1889]. 

Rep.  1  80  [1898].  10  Dohoney  v.  Womack  (Tex.),  20  S.  W. 

*Lenning's  Ex'rs  v.  White  (Va.),  20  S.  Rep.  950,  affirming  19  S.  W.  Rep.  883. 

E.  Rep.  831.  "Mutual    B.    &    L.    Assn.  v.    Wyeth 

5  Indiana  Cent.  Canal  Co.  v.  State,   53  (Ala.),     17    So.     Rep.    45;     Voorheis    v. 
Ind.  575  [1876].  Eiting  (Ky.),  22  S.  W.  Rep.  80;  Nelson  v. 

6  Sargent  z/.  Adams,  3  Gray  72;  Chester  Abernethy    (Miss.),    21    So.     Rep.     150; 
•  Emery  Co.  v.  Lucas,  112  Mass.  435;  Mead  George  v.  Bates  (Va.),  20  S.  E.  Rep.  828. 
v.  Parker,  115  Mass.  413;  i  T.  R.  791.  "Slack  v.  Dawes  (Tex.),  22  S.W.  Rep. 

7  Stoops  v.  Smith,  100  Mass.  63.  1053. 

8  Hanlon  v.  Union  Pac.  Ry.  Co.  (Neb.), 

*  See  Sec.  546,  supra,  and  Sec.  558,  infra. 


§  555-          OPERATIONS   PRELIMINARY    7^0    CONSTRUCTION.  384 

ing  the  words  "  west  part  "  to  mean  "  west  half."  l  There  is  no  objection  to 
a  description  of  land  as  the  "  south  one-fourth  "  or  "  the  south  10  acres  "  of 
a  government  subdivision.2  A  description  by  metes  and  bounds  less  25  acres 
off  the  south  side  was  held  to  require  that  a  parallelogram  with  the  south  line 
as  the  base  be  deducted.3  A  deed  which  conveys  "78  rods  off  the  south 
side  of  the  northwest  quarter  "  of  a  section  describes  a  certain  fractional  part 
of  the  quarter,  78  rods  wide,  on  the  south  side,  extending  along  the  entire 
length.4 

A  description  reading,  "a  lot  60  feet  wide  on  M.  street  and  128.90  feet 
deep,  being  the  north  end  of  lot  293  in  the  village  of  M.,"  is  sufficient.5 

In  a  deed  of  the  "east  half"  of  a  fractional  quarter-section,  the  words 
"  east  half"  refer  to  the  government  subdivision  of  the  quarter-section,  and 
not  to  a  subdivision  of  the  quarter-section  by  a  line  dividing  it  into  two  equal 
parts. 6 

If  a  conveyance  of  an  undivided  half  of  a  tract  of  land,  identified  as  coming 
from  a  particular  conveyance,  be  made,  the  grantee  cannot  by  this  description 
take  the  other  half  even  though  the  half  so  identified  proves  to  be  subject  to 
a  mortgage.7 

"  Parcels  "  as  applied  to  land  was  held  to  mean  "portions."  8 

555.  Insufficient  Description  Cured  by  Reference  to  a  Map  or  Deed. — 
Descriptions  that  would  be  insufficient  are  frequently  rendered  certain  by 
reference  to  some  other  deed,  map,  or  instrument  of  record ;  but  such  refer- 
ence should  be  explicit,  and  if  the  conveyance  is  to  be  according  to  the  map 
or  description  contained  in  some  earlier  record,  the  deed  should  make  that  fact 
clear.  A  general  reference  after  a  particular  description  goes  for  naught. 
Conveyances  are  frequently  made  certain  by  reference  to  the  land  as  being  the 
same  as  was  conveyed  to  the  grantor  by  some  prior  conveyance.  Such  refer- 
ences frequently  correct  mistakes  made  in  transcribing  the  title-deeds.  A 
deed  describing  property  conveyed  as  "  all  that  certain  interest  in  the  landed 
estates  of  H.  and  M.,  deceased,  to  which  we  may  be  entitled  by  gift,  devise, 
or  descent,  or  otherwise,"  is  sufficient.9 

When  the  land  in  controversy,  described  in  a  sheriff's  deed,  was  incapable 
of  identification  without  reference  to  a  map,  and  there  were  two  maps  which 

1Soukup  v.  Union  Inv.  Co.  (Iowa),  51  Rep.    615.     And  see   People    v.    Storms, 

N.  W.  Rep.  167.  97  N.  Y.  364  [1884]. 

2  McCartney    v.    Dennison    (Cal.),    35  5  H9ban    v.    Cable   (Mich.),    60    N.  W. 
Pac.     Rep.     766;     Owen    -v.     Henderson  Rep.  466. 

(Wash.),    47    Pac.   Rep.   215;    Bassett  v.  6  Turner  v.  Union    Pac.    Ry.  Co.  (Mo. 

Sherrod  (Tex.),  35  S.  W.  Rep.  312.     But  Sup.),  20  S.  W.  Rep.  673. 

see  Nelson  z>.  Abernethy   (Miss.),  21  So.  7  Bailey  v.   Knapp    (Me.),  9    Atl.  Rep. 

Rep.  150.  356  [1887]. 

3  Watson  v.  Crutcher  (Ark.),  19  S.  W.  8  Johnson    v.    Sirret    (Sup.),    31    N.  Y. 
Rep.  98;  Gress  Lumb.  Co.  v.  Coody  (Ga.),  Supp.  917. 

21    S.    E.    Rep.   217;  Tierney   v.    Brown  9Harrisz/.  Broiles  (Tex.),  22  S. W.  Rep. 

(Miss.),  5  So.  Rep.  104  [1889].  421. 

*Cobb  ».  Taylor  (Ind.  Sup.),  33    N.  E.    . 


385  A  PPL  ICA  TION   OF  DESCRIP  TIONS.  §  5  5  5  • 

answered  the  description  equally  well,  neither  of  which  was  ever  filed  with  the 
county  recorder,  testimony  of  the  sheriff  as  to  which  map  he  referred  to  in 
the  deed  was  held  inadmissible.1  An  erroneous  or  uncertain  description  in  a 
notice  of  a  judicial  sale,  or  in  a  deed  given  pursuant  thereto,  will  avoid  the 
sale.2  An  exception,  in  a  deed,  which  reads,  "  Except  the  dower  of  fifty  acres, 
as  fully  described  in  a  deed  given  to  C.  B.  Co."  was  held  not  void,  as  refer- 
ence could  be  had  to  the  deed  of  C.  B.  Co.3  A  deed  describing  the  land 
conveyed  as  all  the  land  which  the  grantor  owned,  or  in  which  he  had  an 
interest,  in  a  particular  county,  is  sufficient,  as  to  description,  as  to  all  land 
of  the  grantor  in  such  county.4  * 

The  words,  "all  my  right,  title,  and  interest  in  and  to  all  real  estate 
situated  in  Hope,  Warren,  and  Union,"  convey  the  grantor's  whole  estate 
situated  in  the  towns  named;  and  a  clause  following,  "meaning  to  convey 
all  my  right,  title,  and  interest  in  the  real  estate  formerly  occupied  by  me," 
does  not  limit  the  grant  to  such  premises  as  the  grantor  had  occupied,  but 
only  insures  their  inclusion  in  the  grant.5 

Land  is  sufficiently  described  in  a  conveyance  if  the  deed  refers  for  identi- 
fication to  another  deed,  map,  or  other  instrument^  specifically  mentioned 
therein,  which  contains  an  accurate  description  of  the  property  sold.6  j"  An 
imperfect  description  is  often  cured  by  reference  to  another  deed  in  which  the 
land  is  correctly  described.7 

A  deed  describing  land  as  the  grantor's  "  right,  title,  and  interest  in  the 
estate  of  J.  W.  B.,  purchased  by  me  at  administrator's  sale,"  was  held  not 
void  for  want  of  sufficient  description  when  read  in  connection  with  the  deed 
from  the  administrator  to  the  grantor.8  Nor  was  a  deed  held  void  for  want 
of  sufficient  description  when  it  described  a  conveyance  as  "ot  all  the  right, 
title,  and  interest  in  and  to  all  the  lands  purchased  from  R.  as  may  more  fully 
appear  by  the  legal  transfer  of  the  sale  "  ; 9  or  as  "  the  tract  left  me  by  P.  and 
adjoining  lands  of  H.  S.  and  others  containing  180  acres  more  or  less  " ;  10  or 

^adwalder   v.    Nash    (Cal.),   14    Pac.  Allen  v.   Raphael  (Tex.),  31  5.  W.  Rep. 

Rep.  385  [1887].  449.     And  see  Knowles  v.  Bean.  87  Me. 

2  See  Herrich  v.  Merritt  (Minn.),  33  N.  331;   Steelman  v.   Atl.  City  Sew.  Co.,  3$ 

W.  Rep.         ;  Helmer  v.  Rehm  (Neb.),  15  Atl.  Rep.  742;  Perry  v.  Scott  (N.  C.),  14 

N.  W.    Rep.    344;    Burrows    v.     Gibson  S.  E.  Rep.  294. 

(Mich.),  3    N.  W.  Rep.  293;   Chalmers  v.  5  Hobbs  v.  Payson,  85  Me.  498. 

Brown  (Tex.),  2  S.  W.  Rep.  518;    Allday  6  Rupert   v.    Penner   (Neb.),   53   N.   W- 

v.  Whittaker  (Tex.),    I   S.  W.   Rep.   794;  Rep.  598;  Jay  v.  Michael    (Md.),  35    Atl 

Pfeiffer  v.  Lindsay  (Tex.),  I   S.  W.   Rep.  Rep.   322;    Campbell    v.    Morgan  (Sup.). 

265.  22  N.  Y.  Supp.  IOGI. 

'McAfee  v.  Arline  (Ga.),  10  S.  E.  Rep.  7  Leake    v.   Caffey  (Miss.),  19  So.  Rep- 

441;  Sulphur  Mines   Co.    v.  Thompson's  716. 

Heirs  (Va.),  25  S.  E.  Rep.  232.  8  Vineyard  v.  O'Connor  (Tex.),  35  S-  W- 

4Brigham    v.  Thompson   (Tex.),  34  S.  Rep.   1084. 

W.  Rep.  358;  Curdy  v.  Stafford  (Tex.),  30  9  Clipper  v.  Sage  (Tex.),  37  S.  W.  kep 

S.  W.  Rep.  551;  Cox  v.  Hart,  is  Sup.  Ct.  363;    Graham   v.    Botner  (Ky.),  37  S.  W. 

Rep.     962;  *  Threadgill      v.    Bickerstaff  Rep.  583. 

(Tex.),  29  S.  W.   Rep.  757:  Hermann    v.  10  Walker  v.  Moses  (N.C.),  18  S.  E.  Rtp. 

Likens  (Tex.),  39  S.   W.  Rep.  282;    Me-  339. 

*  See  Sec.  552,  supra.  \  See  Sec.  549,  supra. 


§55^.          OPERATIONS   PRELIMINARY    TO    CONSTRUCTION-.  386 

as  " acres  out  of  the  S.  W.  side  of  the  C.  N.  Bassett  survey  of  292  and 

640  acres  in  Brown  County  " ;  *  or  as  "  being  the  land  that  was  willed  to  me 
,by  my  father  " ; 2  or  as  "one-half  of  all  one's  estate  " ; 3  or  as  a  patent  of  all 
the  land  within  certain  boundaries,  "excluding  all  those  surveys  to  which 
there  is  now  a  lawful  title."  4 

A  clause  in  a  deed,  at  the  end  of  a  particular  description  of  the  premises 
by  metes  and  bounds,  "meaning  and  intending  to  convey  the  same  premises 
conveyed  to  me,"  etc.,  does  not  either  enlarge  or  limit  the  grant.5  * 

Where  the  description  in  a  deed  refers  to  a  map,  and  describes  the  property 
by  metes  and  bounds,  starting  from  a  certain  stake,  and  where  it  is  shown 
that  the  map  is  inaccurate  and  not  made  from  an  actual  survey,  that  it  has 
no  scale  or  starting-point,  and  does  not  represent  the  territory  which  it  pur- 
ports to  include,  the  true  location  of  the  land  which  the  grantor  intended  to 
convey  and  the  grantee  to  purchase  may  be  shown  by  parol  evidence;  the 
reference  to  the  map  being  treated  as  surplusage.6 

Where  a  deed  for  the  transfer  of  land  misdescribes  the  tract  intended  to 
be  conveyed,  and  the  grantors  execute  a  second  deed  to  correct  the  descrip- 
tion of  the  first,  both  instruments  are  admissible  to  show  the  ownership  of  the 
land  in  the  grantee.7 

556.  Grantee  or  Devisee  Uncertain. — If  there  be  uncertainty  as  to  which 
of  the  persons  is  the  grantee  or  devisee,  testimony  may  be  given  as  to  the 
grantor's  acquaintance,  relationship,  etc.,  to  the  parties  to  ascertain  which  of 
the  parties  was  intended.8  This  is  true  only  when  the  description  applies 
equally  to  both  persons;  if  it  applies  exactly  to  one  person  and  imperfectly 
to  another,  then  no  evidence  will  be  admissible.  The  grant  will  go  to  the 
party  who  answers  best  the  description.9  If  a  devise  be  a  gift  to  a  society  for 
charitable  purposes  and  the  description  apply  to  two  different  societies  equally, 
it  may  be  divided  between  the  two,  since  the  gift  was  for  a  certain  object  and 
that  object  will  be  accomplished  thereby.10 

A  deed  of  land  known  as  the  "  W.  Homestead/'  200  acres,  more  or  less, 
bounded  by  the  lands  of  certain  persons  named,  "and  of  others,"  maybe 
explained  by  the  grantor  so  as  to  identify  the  :and  and  show  the  names  of 
the  "  others,"  adjoining  owners.11 

Bassett    v.  Sherrod   (Tex.),  35  S.  W.  6  Cleveland    v.    Choate  (Cal.),   18  Pac. 

Rep.  312.    But  see  Edens  v.  Miller  (Ind.),  Rep.  875  [1888]. 

46  N.   E.   Rep.  526.  7  Arn  v.  Mathews  (Kan.),  18  Pac.  Rep. 

2  Beaty   v.  Dozier  (Ky.),  34  S.  W.  Rep.  [1888]. 

524;  Blakely  v.  Quinlan  (Ky.),  39  S.  W.  8  Grant  v.  Grant,  5  C.  P.  727. 

Rep.  513.  9McKilvert's  Trusts  (Eng.),  7  Ch.  170; 

3Roehl  v.    Haumeier  (Ind.),    15  N.  E.  Waring  v.  Ayers,  40  N.  Y.  357.     And  see 

Rep.  345  [1888].  27  W.  Rep.  392. 

4Ballowe  v.  Hillman  (Ky.),  37   S.  W.  10  McKilvert's  Trusts  (Eng.),  7  Ch.  170. 

Rep.  950.  n  Rapley  v.  Klugh  (S.  C.),i8  S.  E.  Rep. 

6  Smith  v.  Sweat  (Me.),  38  Atl.  Rep.  554  680. 
[1897]- 

*  See  Sees.  547-549,  supra. 


387  APPLICATION  OF  DESCRIPTIONS.  §  558. 

557.  Intention  of  Parties  will  Prevail  if  it  can  be  Ascertained  from 
Deeci$ — In  interpreting  descriptions  of  land  conveyed,  it  should  be  borne  in 
mind  that  it  is  the  intention  of  the  parties  as  expressed  in  the  conveyance  that 
will  prevail.      If  the  intention  be  clear,  it  will  hold  even  though  the  parties 
have  given  an  incorrect  specific  description.1     If  the  description  be  sufficient 
to  ascertain  the  estate  intended  to  be  conveyed,  although  the  estate  does  not 
agree  with  some  of  the  particulars  in  the  description,  yet  it  will  pass  by  the 
conveyance,  that  the  intent  of  the  parties  may  be  effected.2 

No  mistake  in  the  description  of  the  land  conveyed  will  vitiate  the  deed 
if  the  description  be  sufficient  to  ascertain  the  land  intended  to  be  conveyed, 
although  the  land  does  not  agree  with  some  of  the  particulars  in  the  descrip- 
tion.3 Thus  it  frequently  happens  that  courses  and  distances  do  not  agree 
with  the  monuments  referred  to,  and  that  mistakes  occur  as  to  the  ownership 
of  the  land  on  which  the  granted  premises  abut.  In  all  such  cases  the  courses 
and  distances  will  be  controlled  by  the  monuments,  and  other  mistakes  will 
be  disregarded  if  the  whole  description  be  such  as  to  ascertain  the  intention 
of  the  parties  with  reasonable  certainty.4 

Where  a  deed  conveying  land  "  bounded  and  described  according  to  "  a 
certain  survey  does  not  call  for  a  river,  but  calls  for  a  line  run  between  certain 
points  designated  by  the  surveyor,  as  on  the  bank  of  a  navigable  river,  but 
where  it  appears  that  the  lines  of  such  survey  excluded  flats  between  high- 
water  and  low-water  marks,  evidence  aliunde  is  admissible  that  the  bank 
referred  to  was  an  artificiardike;  that  the  grantee  had  notice  that  the  grantors 
reserved  the  flats;  that  the  grantors  refused  to  execute  a  deed  expressly  con- 
veying the  flats;  and  that  the  sale  was  expressly  subject  to  a  survey, — such 
evidence  tending  to  show  that  the  flats  were  excluded,  whatever  may  be  the 
presumption  from  the  deed.5 

558.  When  Evidence  of  Intention  of  Parties  is  Admissible. — In  general 
no   direct   evidence   of  intention   will   be   admitted    to   render  a  description 
certain;  and  if  extrinsic  evidence  of  the  attendant   circumstances  of  the  grant 
or  devise,  of  the  relations  of  the  parties,  and  of  the  object  in  view  will  not 
render  the  description  certain,  then  it  must  fail  for  insufficiency.     If  ambiguity 
exists,  the  court  will  inquire  into  all  extrinsic  facts  that  bear  upon  the  subject 
to  determine' the  parties,  or  the  quality,  quantity,  location,  or  identity  of  the 
subject-matter.      If  the  uncertainty  be  so  evident  as  to  render  the  interpreta- 
tion and  understanding  of  the  description  hopeless,  then  the  court  will  declare 
it  void  for  uncertainty.      Where  there  is  a  manifest  mistake  in  the  calls  of  a 
deed  or  patent,  the  plat  and  certificate  of  survey  may  be  referred  to  to  deter- 
mine the  boundary.6 

1  Worthington  v.  Hilyer,  4  Mass.  196.         410  [1839]. 

2  Bosworth    v.    Sturtevant   (Mass.),    2          5  Palmer  v.  Farrell  (Pa.),  18  All.  Rep. 
Cush.  392;  Pierce  v.    Brown,  24  Vt.   165       761. 

[1852].  « Patrick    v.  Spradlin  (Ky.),  42  S.  W. 

8  Worthington  v.  Hilyer,  4  Mass.  196.  Rep.  919  [1897]. 

*  Clark   v.    Munyan    (Mass.),  22  Pick. 


§559-          OPERATIONS  PRELIMINARY    TO    CONSTRUCTION.  388 

In  another  case,  in  which  a  piece  of  land  was  described  as  the  N.  W. 
quarter,  section  32,  which  should  have  read  the  S.  E.  quarter,  section  33, 
evidence  was  offered  by  the  scrivener  that  the  testator  told  him  to  write  it 
N.  W.  quarter,  section  33,  and  that  he  had  made  the  mistake,  and  it  was  held 
that  this  was  direct  evidence  of  intention  and  was  not  admissible.  You  may 
omit  certain  parts  if  it  leaves  the  description  complete,  but  you  may  not  add 
to  or  change  the  written  instrument.1  Statements  of  the  scrivener  of  the 
deed,  as  to  what  the  parties  directed*  him  to  do  at  the  time  of  drawing  the 
deed,  are  not  admissible  to  show  which  of  two  lots  of  land  was  intended  by 
the  description.2  A  mistake  in  a  description  which  is  common  to  the  parties 
and  to  the  scrivener,  by  reason  of  which  land  intended  to  be  mortgaged  was 
imperfectly  described,  was  held  to  be  a  mistake  of  fact  and  not  of  law.3 
Extrinsic  evidence  is  always  admissible  to  explain  a  deed  or  sealed  instrument, 
but  extrinsic  evience  to  vary  or  change  a  deed  is  not  admissible.  In  a  descrip- 
tion of  land  by  monuments  as  "to  the  mountain,  or  parallel  with  the  moun- 
tain," where  several  lines  could  be  located,  the  court  said  it  was  impossible 
to  explain  the  deed  acceptably.  It  was  admitted  that  if  the  shortest  distance 
between  the  two  points  were  adopted,  only  one  point  could  be  determined. 
The  higher  court  held  the  line  to  a  mountain  to  be  the  shortest  line.  It  was 
decided  upon  a  principle  of  construction  in  this  case  and  not  upon  the 
evidence.  The  document  had  a  clear  meaning,  and  therefore  no  amount  of 
evidence  could  change  it.4 

559,  Conveyances  Not  Located  Give  Undivided  Interest, — The  Sescrip- 
tion  must  be  so  certain  that  the  property  conveyed  can  be  identified  without 
the  aid  of  extrinsic  evidence.5  A  deed  of  a  certain  number  of  acres  of  a  tract 
described  is  not  void  for  uncertainty,  but  conveys  a  proportionate  undivided 
interest;6  but  a  conveyance  in  fee  of  "  the  undivided  fourth"  of  certain  lands 
was  held  uncertain.7  A  deed  describing  the  land  as  all  the  undivided  interest 
which  the  grantor  had  in  30  acres  out  of  a  certain  survey  was  held 
insufficient.8 

A  sheriff's  deed  describing  the  land  as  "426!  acres  of  land  out  of  the 
S.  W.  side  of  the  C.  N.  Bassett  survey,  No.  292,  of  640  acres,  in  Brown 
county,"  was  held  void  for  want  of  sufficient  description.9  If  no  attempt  be 

TKurtS    v.  Hibner,  55  111.  514.     But  see  5Sulphur    Mines    Co.    v.'  Thompson's 

Guardhous  v.   Blackburn,  L.   R.    I   P.   &  Heirs  (Va.),  25  S.    E.   Rep.  232;  Lowe  v. 

D.  109;  Drew  v.  Smith,  46  N.  Y.  204-210.  Harris  (N.  C.).   17  S.  E.  Rep.  539;  Rich- 

2  Madden  v.  Tucker,  46  Me.  367  [1857];  ardson   v.    Pavell  (Tex.),    198.   W.   Rep. 

Riggs  v.  Myers,  20  Mo.  439.  leading  case.  262;     Mizell    v.    Ruffin  (N.   C.),   18  S.  E. 

Contra,  Creasey  v.  Alvprson,  43  Mo.  13-  Rep.  72. 

21,  where  evidence  was  admitted  to  show  6Linnartz    v.   McCulloch  (Tex.),   27  S. 

what  land  the  testator  owned,  and  as  to  W.  Rep.  279. 

what  testator  intended.     See  Fitzgerald  7  Ford  v.   Unity  Ch.   Soc.  (Mo.),   25  S. 

v.  Libby  (Mass.),  22  Reptr.  613  [1886].  W.  Rep.  394. 

8Whipperman  v.  Dunn  (Ind.),  24  N.  E.  8  Gallagher  v.   Rahm  (Tex.),   31  S.   W. 

Rep.  1045  [1890!.  Rep.  327.     And  see  Steelman  v.  Atl.  City 

*Best    v.    Hammond,   55    Pa.    St.    409.  S.  Co.  (N.  J.),  38 •  Atl.   Rep.  742. 

And  see   Black  v.   Bachelder,    120  Mass.  9  Bassett    v.   Sherrod  (Tex.),  35  S.   W. 

171.  Rep.  312. 


389  APPLICATION  OF  DESCRIPTIONS.  §5^1. 

made  to  locate  the  land,  but  the  conveyance  be  a  deed  or  devise  of  a  certain 
number  of  acres  out  of  a  larger  tract,  it  may  pass  an  undivided  interest  in  the 
entire  tract.1 

Where  a  deed  describes  the  land  conveyed  as  all  of  a  certain  league, 
excepting  therefrom  certain  tracts,  and  the  tracts  excepted  cannot  be  located, 
the  deed  is  void  for  uncertainty.  If  it  convey  a  certain  number  of  acres  of 
the  unsold  part  of  a  certain  league,  to  be  a  square  form,  or  as  near  thereto  as 
practicable,  beginning  at  a  certain  place,  and  it  is  impossible  to  locate  a  tract 
of  such  shape  without  including  therein  tracts  previously  sold,  the  deed  is 
void  for  uncertainty.2 

560.  Signs,  Symbols,  and  Abbreviations  in  Descriptions. — Descriptions 
that  are  in  language  and  signs  peculiar  to  engineers  and  surveyors,  and  which 
have  been  incorporated  into  a  deed,  are  not  void  for  uncertainty  if  they  can 
be  identified  and  located  by  a  competent  surveyor  with  reasonable  certainty, 
either  with  or  without  extrinsic  evidence.3 

If  the  language  employed  in  the  instrument  be  technical,  evidence  may  be 
introduced  to  interpret  or  explain  the  meaning  of  the  words,  signs,  abbrevia- 
tions, or  diagrams  employed.4  Evidence  of  custom  and  usage  is  also 
.explanatory  evidence  and  will  be  admitted,  as,  e.g.,  the  customs  of  surveyors 
or  of  localities.5  Thus  a  description  of  land  as  "  S.  %,  ex.  W.  12  rods  of 
E.  40  rods,  of  N.  -^  and  N.  10  rods,  S.  13  rods,  of  E.  28  rods  of  N.  -j-  of 
N.  W.  £  of  sec.  23,  etc.,  74TVfr  acres,"  was  held  sufficient,  and  one  as 
"  N.  side  N.  £  S.  E.,  N.  W.  10  acres  sec  8.  T.  23  R.  10,  quantity  sold  10 
acres,"  was  held  not  void  for  uncertainty.6  The  introduction  of  evidence  to 
show  that  "degrees"  should  have  been  written  "perches"  in  a  deed  has  been 
denied.7 

Figures  printed  across  a  street  on  a  map,  without  any  sign  to  indicate 
what  the  numbers  stand  for,  sufficiently  designate  the  width  of  the  street  if  the 
scale  of  the  map  shows  that  the  number  was  intended  to  represent  feet.8 

561.  Judicial  Notice   of  Meaning   of  Abbreviations,  etc. — Courts  will 
often  take  judicial  notice  of  the  meaning  of  such  initials  and  the  abbreviations 
used,  without  proof;  and  of  lines  and   subdivisions,  their  position  and  loca- 
tion with  reference  to  other  lots,  subdivisions,  and  lines;   and  of  the  fact  that 
the  south  line  of  a  section  and  the  south  line  of  a  township  are  one  and  the 
same  line,  that  there  is  no  township  of  a  certain  number  south  in  the  county, 
and  that  therefore  the  township  referred  to  is  north.9     They  have  also  taken 

1  Byrn  v.   Kleas  (Tex.),  39  S.  W.  Rep.  529  [1887],     And  see  Tierney  v.  Brown 
980.  (Miss.),  5  So.  Rep.  104  [1889];  Adams  v. 

2  Dwyre  z/.  Speer  (Tex.),  27  S.  W.  Rep.  Harrington   (Ind.),    14    N.  E.    Rep.    603 
585.  [1888]. 

'Lawt/.  People  ex  ret.,  268.  7  Clarke  v.  Lancaster,  36  Md.  196  [1872]. 

4  Best's  (Chamb.)on  Evidence  231.  8Gaffney  v.  City  of  S.  F.,  72  Cal.  146 

5  Best's  (Chamb.)  on  Evidence  231.  See       [1887]. 

Black  v.  Bachelder,  120  Mass.  171.  9  Kile  v. Town  of  Yellowhead,  80  111.  208 

6  Taylor  v.  Wright  (111.),  13  N.  E.  Rep.       [1875]. 


§5^2.          OPERATIONS  PRELIMINARY    TO    CONSTRUCTION.  3QO 

notice  of  the  fact  that  the  magnetic  needle  varies  from  the  true  north. 1 

Judicial  notice  has  been  taken  of  facts  in  connection  with  boundaries, 
geographical  subdivisions,  names  of  counties,  cities,  etc.,  and  in  connection 
with  navigable  waters.2 

562.  Poor  Spelling  and  Grammatical  Errors  in  Description.  —  Poor 
spelling  and  grammatical  inaccuracies  cannot  render  a  description  insufficient 
if  the  clear  and  evident  understanding  of  the  parties  can  be  ascertained. 
Thus  where  a  deed  described  the  land  conveyed  as  "  a  biece  of  land  aboot  100 
feet  long  or  wide,"  and  further  described  it  by  metes  and  bounds,  and  the 
land  was  at  the  date  of  conveyance  fenced  and  known  to  the  purchaser,  the 
description  as  to  metes  and  bounds  controls  the  statement  as  to  quantity.3 

Parol  evidence  is  admissible  to  show  that  the  name  "  Henry  Pulling," 
designating  the  beneficiary  in  a  grant  of  land,  and  the  name  "  Henry  Pullen," 
designating  the  grantor  in  a  deed  of  the  same  land,  described  one  and  the 
same  person.4 

1  Bryan    v.     Beckley,    Litt.    Sel.   Cas.  Arch.  Jurlsp.,   §  8g2a;    Best's  Evidence 

(Ky.)  91.  (Chamb.-Ed.)  262. 

2'i2  Amer.  &   Eng.  Ency.  Law  174.   See  'Thompson    v.   Sheppard  (Ala.),  5  So. 

judicial  notice  as  to  differences  of  time,  Rep.    334    [1889];     Sloan    v.    Thompson 

navigability   of   streams,    variations    of  (Tex.),  23  S.  W.  Rep.  613. 

needle,    telephones,    etc.,    12    Amer.    &  *  Hicks  v.  Ivey  (Ga.),  26  S.  E.  Rep.  68. 
Eng.  Ency.  Law  196,  a«</Wait's  Engin.  & 


CHAPTER  XXX. 
DESCRIPTION.    CONFLICT  OF  CALLS. 

571.  Governing  Factors  in  Description — That  which  is  Most  Certain 
will  Control. — Different  parts  of  a  description  are  sometimes  in  conflict  and 
irreconcilable,  and  it  becomes  a  question  of  law  as  to  which  shall  predomi- 
nate. Numerous  rules  of  construction  have  been  laid  down,  but  probably 
none  is  more  firmly  established  than  that  monuments  control  all  other  parts. 
This  rule  is  founded  upon  the  general  rule  of  construction  that  "that  which 
is  most  certain  should  control  " ;  or  in  other  words,  "  When  there  is  conflict 
between  descriptions  in  a  deed,  that  description  is  to  be  adopted  which  is  the 
least  likely  to  be  affected  by  mistakes."  l  If  both  descriptions  of  the  deed 
are  of  equal  authority,  that  one  which  is  most  favorable  to  the  grantee  must 
be  adopted.2  The  reason  and  justice  of  this  rule  are  explained  in  the  numer- 
ous opinions  delivered  from  the  bench  and  which  have  been  handed  down 
from  the  earliest  records.  The  rule  that  what  is  most  material  and  certain 
shall  control  that  which  is  less  material  and  uncertain  is  supported  by 
common  sense.3 

The  ordinary  variations  of  the  needle  by  local  attraction,  the  imperfec- 
tions of  the  instruments  used  in  surveying,  or  unskillful  ness  in  their  use,  the 
inequalities  of  the  ground,  the  expansion  and  contraction  of  tapes  and  chains 
due  to  heat  and  cold,  the  wearing  and  stretching  of  the  joints  of  chains,  are 
all  elements  of  error  and  uncertainty  which  do  not  belong  to  monuments  and 
which  in  the  estimation  of  courts  make  courses  and  distances  secondary  to 
fixed  monuments.  If  to  these  considerations  we  add  the  ignorance  or  care- 
lessness of  the  scrivener  in  expressing  the  meaning  of  the  parties,  which  is 
often  apparent  on  the  face  of  a  deed,  we  shall  find  that  the  acts  of  the  parties 
in  pointing  out,  running,  marking,  or  locating  a  line  are  more  likely  to  dis- 

l  Vance  v.  Fore,  24Cal.  437  [1864];  New  Me.  169;  Benedict  v.  Gaylord,  II  Conn. 

York&T.   Land   Co.   v.  Votaw,  14   Sup.  333;  Jackson    v.    Camp,    i    Cowen    605; 

Ct.  Rep.  i.  Jackson  v.  Wendell,   5   Wend.  142;   Fen- 

|  Vance  v.  Fore,  24  Cal.  436  [1864].  ley   v.    Flowers   (Tex.),    23   S.    W.  Rep. 
Bowman  v.  Farmer,  8  N.  H.  402;  Doe  749;  Raymond  v.  Coffey,  5   Oregon    132; 
v.   Thompson,    5    Cowen    371;    Colter  v.  i  Greenleaf  on  Evidence,  §  301;  3  Wash- 
Mann,    18    Minn.    96    [1871];    Myers    v.  burn  on  Real  Property  344-353. 
Ladd,  26  111.  414;   Lincoln  v.  Wilder,  29 

391 


;§  572'          OPERATIONS  PRELIMINARY    TO    CONSTRUCTION.  392 

close  their  intention  as  to  where  the  line  should  be,  when  the  deed  was  given, 
than  courses  or  distances  put  down  on  paper. l 

When  the  boundaries  of  land  are  fixed,  known,  and  unquestionable,  the 
monuments  must  govern  although  neither  courses  nor  distances,  nor  the  com- 
puted area,  correspond.  Because  of  errors  in  surveying  instruments,  varia- 
tions of  the  needle,  and  other  causes  surveyors  often  disagree  with  respect  to 
courses.  The  same  observations  apply  to  disagreements  arising  from  the 
inaccuracies  of  measures  or  of  the  party  measuring;  and  computations  made 
from  the  field  operations  are  often  erroneous.  Fixed  monuments  remain; 
about  them  there  should  be  no  uncertainty,  and  what  may  be  uncertain  must 
be  governed  by  that  which  is  fixed. 

In  all  cases  of  contradiction  between  the  parts  of  a  description,  that 
'element  will  control  about  which  there  is  the  least  likelihood  of  mistake.2 

572.  The  Intention  of  Parties  will  Prevail. — Though  the  rule  that 
monuments  govern  courses,  distances,  and  acres  is  generally  the  accepted  prin- 
ciple of  construction  and  is  almost  universal,  yet  it  is  modified  and  controlled 
by  the  evident  intention  of  the  parties.  If  the  facts  gathered  from  the  instru- 
ment show  conclusively  that  the  parties  intended  some  particular  or  inferior  ele- 
ment to  control,  the  rule  must  give  way,  that  such  intention  may  be  carried 
out.3  The  first  inquiry,  then,  in  construing  a  deed  is,  "What  was  the  intention 
•of  the  parties?  "  This  is  to  be  ascertained  primarily  from  the  language  of  the 
deed.  The  court  will  not  travel  out  of  the  four  corners  of  the  paper,  if  the 
instrument  affords  a  clear  and  certain  interpretation;  but  if  the  intention  be 
doubtful,  then  the  judge  may  at  his  discretion  admit  extrinsic  evidence  to 
assist  ir*  the  full  understanding  of  the  parties'  relations.4  If  a  description  is 
so  clear,  unambiguous,  and  certain  that  the  intention  of  the  parties  may  be 
gathered  from  its  terms,  it  will  control.  The  object  of  the  law  is  to  ascertain 
and  discover  the  intention  of  the  parties,  and,  when  this  can  be  done,  to  carry 
the  intention  into  effect.5  It  is  the  intention,  when  ascertained,  which 
governs,  and  all  the  language  must  be  considered.6 

The  question  of  what  was  the  grantor's  intention  should  be  submitted  to 
the  jury  without  abstract  instructions  as  to  rules  and  presumptions  which 
determine  whether  calls  for  course  and  distance,  or  calls  for  unmarked  lines 
and  corners  of  adjacent  surveys,  shall  control.  The  intention  is  to  be 
gathered  from  all  the  facts  and  circumstances  in  evidence.7  An  instruction 

1  Knowles  v.  Toothaker,  58  Me.  172.  Grandin  v.  Hernandez,  29  Hun  399,  203; 

22Amer.    &  Eng.  Ency.  Law  499,  and  Bridges    v.    Pierson,    45    N.  Y.    601,604; 

cases  cited.  Morris  v.  Ward,  36  N.  Y.  587,  592;  Keith 

•Thayer    v.    Finton,     108    N.  Y.     394;  v.  Reynolds,  3  Grenl.  393;  Lodge  v.  Lee, 

Holland  v.  Thompson  (Tex.),   35    S.  W.  6  Cranch    237;  Ousby  v.  Jones,  73  N.  Y. 

Rep.  19;  Cadeau   v.   Elliott   (Wash.),  34  621. 

Pac.    Rep.    916;    Robertson   v.    Mooney  6  Grandin  v.  Hernandez,  29   Hun  403; 

(Tex.),  21    S.  W.    Rep.    143;    Roberts  v.  Smith  v.  Horn    (Pa.),  31  Atl.  Rep.  1078. 

Helms  (Tex.),  20  S.  W.  Rep.  1004.  7  Holland    v.  Thompson   (Tex.),    35  S. 

*Kock  v.  Dunkel,  9  Pa.  St.  264  [1879].  W.  Rep.  19. 

6Thayer    v.     Finton,    108    N.  Y.   394; 


393 


CONFLICT   OF  CALLS  IN  DESCRIPTION. 


§573- 


merely  defining  the  dignity  of  the  different  calls  in  the  patent,  namely, 
artificial  and  natural  objects,  calls,  and  distances,  should  not  be  given,  as  it 
becomes  a  charge  on  the  weight  of  the  evidence.1 

573.  Controlling  Factors  when  Intention  is  Not  Clear — Monuments 
Control. — As  Chief  Justice  Cooley  of  Michigan  has  said :  ' '  No  rule  in  real- 
estate  law  is  more  inflexible  than  that  monuments  control  courses  and 
distances — a  rule  frequently  applied  in  case  of  public  surveys,  where  its 
propriety,  justice,  and  necessity  are  never  questioned."  2  Fixed  and  known 
monuments  or  objects,  called  for  in  a  description  of  a  deed,  must  prevail  over 
given  courses  and  distances;  the  order  of  application  being,  first,  to  natural 
objects;  second,  to  artificial  marks;  and,  third,  to  courses  and  distances.3 

The  highest  and  best  evidence  of  the  location  of  a  tract  of  land  is  that 
furnished  by  the  monuments  found  on  the  ground  and  which  have  been  made 
for  that  particular  tract.  If  found  or  located  on  the  ground,  that  is  the  best 
evidence  of  the  location  of  the  tract,  and  then  it  matters  not  what  the  calls 
are,  what  the  lengths  of  the  lines  are,  or  what  their  courses.  The  boundary- 
lines  go  from  one  monument  to  another  if  they  can  be  found.  When  monu- 
ments cannot  be  found,  the  calls  should  be  resorted  to,  and  it  is  the  duty  of 
the  surveyor  to  go  upon  the  ground  and  run  the  lines  according  to  these 
calls.4  The  line  originally  run,  fixed,  and  marked  is  the  true  boundary-line 
that  will  control  irrespective  of  any  mistakes  or  errors  in  running  and  marking 
the  line;  and  this  is  true  of  boundaries  between  states  and  nations  as  well  as 
of  those  of  estates.5  Monuments  and  lines,  actually  run,  control  boundaries 
shown  upon  a  map  or  plat  when  lots  have  been  sold  according  to  the  num- 


1  Huff   v.    Crawford   (Tex.),   34   S.  W. 
Rep.  606. 

2  Diehl  v.  Zanger,  39  Mich.  6or  [1880]. 
Monuments    govern     courses    and    dis- 
tances.    Taylor  v.  Fomby  (Ala.),  22  So. 
Rep.  910;  Hurlbutt  v.  Butenop,  27  Cal.  57; 
Stinchfield   v.  Gillis  (Cal.),  40   Pac.  Rep. 
98;   Stoll  v.  Beecher  (Cal.),  29  Pac.  Rep. 
327;  Los  Angeles  F.  &  M.  Co.  v.  Thomp- 
son (Cal.),  49  Pac.  Rep.   714;   Quillen  v. 
Betts    (Del.),    39    Atl.     Rep.    595    [1897]; 
Meydenbauer  v.  Stevens  (D.  C.),  78  Fed. 
Rep.    787;    Myers    v.    Ladd,  26    111.  415; 
England  v.  Va'ndermark  (111.  Sup.),  35  N. 
E.  Rep.  465;  Logan  v.  Evans  (Ky.),  298. 
W.  Rep.  636;  Sawyer  v.  Kendall,  roCush. 
241;  Pejepscut    Proprietors    v.   Ransom, 
14  Mass.  144;  Olson  v.  Keith  (Mass.),  39 
N.  E.  Rep.  410;  People  v.   Auditor-Gen- 
eral, 7  Mich.  96;  Brown  v.  Morrill  (Mich.), 
51    N.  W.   Rep.   700;    Vanish   v.   Tarbox 
(Minn.),  51  N.  W.  Rep.    1051;  Burnham's 
Heirs  v.    Hitt  (Mo.),   45  S.  W.   Rep.   368 
[1898];    Greenleaf    v.    Brooklyn     E.    R. 
Qo.,  8  N.  Y.  Supp.  30,  a  ditch;  Muhlker 
v.  Ruppert,  124  N.  Y.  627  [1891];  People 
v.   Jones,   112  N.  Y.  597  [1889];  Lush  v. 
Druse,  4  Wend.  313;  Curtis  v.   Aronson 


(N.  J.).  7  Atl.  Rep.  886;  Hopper  v.  Justice 
(N.  C.),  16  S.  E.  Rep.  626;  Anderson  v. 
McCormick  (Oreg.),  22  Pac.  Rep.  1062; 
Lewis  v.  Lewis,  4  Oregon  177;  Raymond 
v.  Coffey.  5  Oregon  132  [1873];  Cross  v. 
Tyrone  M.  &  M.  Co.,  121  Pa.  St.  394; 
Morse  v.  Rollins,  121  Pa.  St.  537  [1888]; 
Lodge  v.  Barnett,  46  Pa.  St.  480;  Davis 
v.  Baylor  (Tex.),  19  S.  W.  Rep.  523;  Sen 
v.  Rehling  (Tex.),  29  S.  W.  Rep.  1114; 
Church  v.  Stiles  (Vt.),  10  Atl.  Rep.  674 
[1887];  Graves  v.  Mattison  (Vt.),  38  Atl. 
Rep.  498;  Teass  v.  City  of  St.  Albans  (W. 
Va.),  17  S.  E.  Rep.  400;  Lampe  v.  Ken- 
nedy. 49  Wis.  601  [1880];  Borkenhagen 
v.  Vranden  (Wis.),  52  N.  W.  Rep.  260; 
Garrard  v.  Silver  Pk.  Mines,  82  Fed.  Rep. 
578.  And  see  Lyman  v.  Gedney  114  111.  388; 
Tyler  on  Boundaries,  Chaps.  X  to  XIII. 
3  Gray's  Cases  on  Real  Property,  §  2,  p. 
285;  2  Amer.  &  Eng.  Ency.  Law  499. 
And  see  Id.  (2d  ed.),  Boundaries. 

3  Vanish    v.  Tarbox    (Minn.),  51  N.  W. 
Rep.  1051. 

4  Cross  v.   Tyrone  M.  &    M.    Co.,    121 
Pa.  St.  390. 

5  Jenkins  v.  Trager,  40  Fed.  Rep.  726- 


§574-          OPERATIONS  PRELIMINARY   TO    CONSTRUCTION.  394 

bers  of  the  plat.1  Dimensions  or  lengths  of  lines  laid  down  upon  a  plat  made 
by  a  surveyor  must  give  way  to  proved  or  admitted  facts  conflicting  there- 
with.2 The  monuments  govern  the  field-notes;3  but  where  the  calls  in  a 
surveyor's  field-notes  can  be  ascertained,  they  control  an  ascertainable  object 
not  called  for.4 

574.  It  is  the  Policy  of  the  Law  to  Maintain  Existing  Boundaries, — 
Judge  Cooley  of  Michigan  in  one  of  his  able  opinions  5  has  presented  this 
subject  in  the  following  words,  which  is  a  lesson  to  surveyors  and  engineers: 
"The  surveyor  testifies  with  positiveness  and  apparently  without  hesitation 
that  the  fences  and  buildings  on  all  the  lots  are  not  correctly  located,  and  that 
therefore  there  is  of  course  an  opportunity  for  forty-eight  suits  at  law,  and 
probably  many  more  than  that.  When  an  officer  proposes  thus  dogmatically 
to  unsettle  the  landmarks  of  a  whole  community,  it  becomes  of  the  highest 
importance  to  know  what  has  been  the  basis  of  his  opinion.  The  record  in 
this  case  fails  to  give  any  explanation,  but  the  reasonable  inference  is  that  the 
surveyor  has  reached  his  conclusion  by  satisfying  himself  of  the  initial  point 
of  the  survey,  and  then  proceeding  to  survey  out  the  plat  anew  with  that  as 
his  starting-point.  Of  course  by  this  method,  if  no  mistake  is  made,  there  is 
no  difficulty  in  ascertaining  with  positive  certainty  where,  according  to  the 
plat,  the  original  street  and  lot  lines  ought  to  have  been  located,  and 
apparently  the  surveyor  has  assumed  that  that  was  all  he  had  to  do.  Nothing 
is  better  understood  than  that  few  of  our  early  plats  will  stand  the  test  of  a 
careful  and  accurate  survey,  without  disclosing  errors.  This  is  as  true  of 
government  surveys  as  of  any  others,  and  if  all  the  lines  were  now  subject  to 
correction  on  new  surveys,  the  confusion  of  lines  and  titles  that  would  follow 
would  cause  consternation  in  many  communities.  Indeed  the  mischief  that 
would  follow  would  be  simply  incalculable,  and  the  visitation  of  the  surveyor 
might  well  be  set  down  as  a  great  public  calamity.  No  law  can  sanction  this 
course.  The  surveyor  has  mistaken  entirely  the  point  to  which  his  attention 
should  have  been  directed.  The  question  is  not  how  an  entirely  accurate 
survey  would  locate  these  lots,  but  how  the  original  stakes  located  them. 

"  No  rule  in  real-estate  law  is  more  inflexible  than  that  monuments  con- 
trol courses  and  distances — a  rule  that  is  frequently  applied  in  case  of  public 

1Rootz/.  Cincinnati  (Iowa),  54  N.W.  Rep.  Dec.  63. 

206;  Burke  v.  McCowen  (Cal.).  47  Pac.  3  Robinson  v.   Laurer  (Oreg.),  40  Pac. 

Rep  367;  City  of  Decaturz/.  Niedermeyer,  Rep.    1012;  Layton   v.    N.   Y.  &  T.  Land 

168    111.  68;    Stetson  v.  Adams  (Me.),  39  Co-  (Tex.),  29  S.  W.   Rep.  1120;  Ogilvie 

Atl.    Rep.    575    [1898];   Smith    v.    Boone  v.    Copeland   (111.),  33  N.  E.   Rep.   1085; 

(Tex.),    19    S.    W.    Rep.    702;     Parks    v.  Utley  v.  Smith  (Tex.),  32  S.  W.  Rep.  906; 

Loomis,  6  Gray  467;  Lunt  v.  Holland,  14  Hopper  v.  Justice  (N.  C.),  16  S.  E.  Rep. 

Mass.   149;  Vance  v.   Fore,  24    Cal.  443;  626;  Busk  v.  Manghum  (Tex.),  37  S.  W. 

Buchanan    v.    Roy's    Lessee,  2  Ohio  St.  Rep.    459.      But    see    Cadeau    v.    Elliott 

263;    Magoun  v.   Lapham,  21   Pick.  135;  (Wash.),  34  Pac.  Rep.  916. 

Mclver  v.  Walker,  9  Cranch  173;  Vanish  4  Ratliff  v.   Burleson  (Tex.),  26  S.   W. 

v.  Tarbox  (Minn.),   51  N.  W.  Rep.   1051  Rep.  1003. 

[!8g2].  5Diehl  v.  Zanger,  39  Mich,  601  [li 

2C.  S.  &  C.  R.  R.  Co.  v.  Tuttle,  7  Ohio 


395  CONFLICT   OF  CALLS  IN  DESCRIPTION.  §  5/6, 

surveys,  where  its  propriety,  justice,  and  necessity  are  never  questioned.  But 
its  application  in  other  cases  is  quite  as  proper,  and  quite  as  necessary  to  the 
protection  of  substantial  rights.  The  surveyor  should  therefore  have  directed 
his  attention  to  the  ascertainment  of  the  actual  location  of  the  original  land- 
marks set,  and  if  those  were  discovered,  they  must  govern.  If  they  are  no- 
longer  to  be  discovered,  the  question  is,  'Where  were  they  located  ?'  and  upon 
that  question  the  best  possible  evidence  is  usually  to  be  found  in  the  practical 
location  of  the  lines,  made^at  a  time  when  the  original  monuments  were  pre- 
sumably in  existence  and  probably  well  known."  1 

The  rule  is  always  applicable  when  it  affects  the  intent  of  the  grantor  as 
shown  in  the  conveyance. a 

575,  Relative  Importance  of  Different  Calls  in  a  Description. — To  carry 
out  this  policy  the  courts  have  recognized  and  given  precedence  and  promi- 
nence to  certain  calls  in  a  description  to   determine  the  boundaries   of  an 
estate.     The  calls  as  generally  adopted  to  locate  a  survey  are  in  the  following 
order,    viz.  :     (i)    monuments    or  marks    upon    the   ground;     (2)    calls   for 
adjoiners;    (3)  courses  and   distances;    (4)  quantity  or  area.      If  the  marks 
found  upon  the  ground  conflict  with  the  calls  for  adjoiners,  with  the  courses 
and  distances,  and  with  the  area,  the  marks  upon  the  ground,  i.e.,  the  monu- 
ments, must  still  govern.3 

576.  Monuments,  if  Identified,  Control  all  Other  Calls.— Where  monu- 
ments  mentioned   in  a   deed  are  identified,   they  control  both   courses    and 
distances  given,  whether  they  were  seen  by  the  parties  to  the  deed  or  not.4 
It  is  not  necessary  even  that  the  grantee  shall  have  actual  knowledge  of  the 
monuments.5 

Where  the  evidence  shows  that  courses  and  distances  in  a  deed  differ  from 
the  monuments  on  the  ground,  or  the  true  line  as  agreed  upon  and  indorsed 
by  landmarks,  the  monuments  govern.6  The  marks  on  the  ground  of  an 
old  survey,  indicating  the  lines  originally  run,  are  the  best  evidence  of  the 
location  of  the  survey,  and  if  any  evidence  of  such  lines  exist,  it  should  be 
referred  to  the  jury.7 

A  striking  case  of  the  preference  for  monuments  over  calls  for  adjoiners 
was  shown  in  a  Massachusetts  case.  'Wild  land  was  described  as  bounded 
'*  westerly  on  the  county  road,  northerly  and  southerly  by  land  owned  by 

1  See  also  an  address  by  Justice  Cooley  Zanger,  39  Mich.  601  [1880] 

before  the  Michigan  Association  of  Sur-  4  Anderson  v.     Richardson    (Cal.),    28 

veyors  and  Civil  Engineers  reported  in  Pac.  Rep.  679. 

Hodgman's  Manual  of  Land  Surveying,  6  Foley  v.  McCarthy  (Mass.),  32    N.  E. 

p.    314,    and    in   Johnson's   Theory   and  Rep.    669.        Accord,     Smith    v.    Boone 

Practice  of  Surveying,  p.  579.  (Tex.),  19  S.  W.  Rep.  702. 

2Fullam  v.  Foster,  68  Vt.  590.  6Rook  v.  Greenwalt  (Com.  PL),  17  Pa. 

"Jackson  v.  Lambert,   121    Pa.  St.  187;  Co.  Ct.   Rep.  642;  Bowen  v.  Gaylord  (N. 

Morse    v.    Rollins,   121   Pa.    St.  537,  and  C.),  29  S.  E.  Rep,  340  [1898]. 

cases  cited  sufra.   This    is  equally  true  of  7  Gratz    v.    Hoover,     16     Pa.     St.     232 

government  surveys.     Watrous  v.  Mor-  [1851]. 
rison  (Fla.),  14  So.    Rep.    805;    Diehl  v. 


§577-  OPERATIONS  PRELIMINARY   TO    CONSTRUCTION.  396 

'  E. '  and  running  easterly  to  Sheldon's  corner,  and  containing  twelve  and 
one-half  acres  more  or  less."  Sheldon's  corner  was  at  the  easterly  termination 
of  the  southerly  line,  and  it  was  held  that  the  northerly  line  must  also  be 
deemed  to  extend  as  far  east  as  Sheldon's  corner,  although  the  lot  would 
thereby  be  bounded  on  the  north  in  part  by  land  of  another  than  "E.," 
which  was  not  mentioned  in  the  deed,  and  although  the  contents  of  the  lot 
would  thereby  exceed  39  acres.1 

Another  case  reported  is  where  a  line  was  described  as  running  south  to 
the  "northwest  corner  of  Burton;  thence  westerly  along  the  northern  line  of 
Waterville, ' '  both  parties  assuming  that  the  northeast  corner  of  Waterville  was 
at  the  northwest  corner  of  Burton.  It  afterwards  turned  out  that  the  Water- 
ville corner  and  north  line  were  a  substantial  distance  further  south.  The 
grant  was  held  to  go  to  the  Burton  corner,  and  the  southern  boundary  was 
run  westerly  therefrom,  and  parallel  with  the  north  line  of  Waterville,  thus 
excluding  the  intervening  territory.2 

Where  parties  have  stuck  stakes  to  mark  the  corners  of  land  conveyed, 
these  stakes  will  govern,  even  though  they  are  627  feet  apart,  when  the 
description  has  given  the  distance  as  250  feet.3 

577.  Monuments  Control  in  Government  Surveys, — Where  titles  to  lands 
have  come  directly  from  the  government,  and  such  lands  have  been  surveyed 
by  government  surveyors  or  agents,  their  survey  will  be  presumed  to  be  correct 
and  the  burden  of  proving  it  wrong  will  be  upon  the  one  who  impeaches  its 
correctness.4  If  monuments  have  been  established  and  erected,  they  must 
govern  if  their  location  can  be  ascertained.5  The  line  actually  run  by  the 
original  'government  surveyors  is  the  true  line.  Courses  and  distances,  as 
contained  in  the  field-notes  and  plats,  are  descriptions  which  serve  only  to 
assist  in  ascertaining  where  the  line  was  actually  run.6 

If  the  lines  established  by  the  United  States  survey  are  obvious,  they 
must  be  followed,  though  made  on  an  assumed  or  wrong  magnetic  variation; 
and  it  is  only  when  lost  lines  and  corners  are  to  be  renewed  that  due  allow- 
ance should  be  made  for  the  variation  of  the  magnetic  needle  from  the  true 
meridian.7 

Where  objects,   natural  or  artificial,  are  called   for  in  the  field-notes  of 

1  Clark  v.  Munyan,  22  Pick.  410  [1839];  *  Miller  v.  White  (Fla.),   2  So.  Rep.  614 
Warden  v.  Harris  (Tex.),  47   S.  W.  Rep.  [1887!;  Breen  v.  Donnelly  (Cal.),  15  Pac. 
834  [1898],     But  see  Pierce  v.  Brown,  24  Rep.  845  [1888]  ;  Greer  v.  Squire  (Wash.), 
Vt.    165    [1852].     And  see   Woodward  v.  37  Pac.  Rep.  545. 

Nims,  130  Mass.  70  [1881];  Thomasson  v.  5  Vroman  v.  Dewey,  23  Wis.  530  [1868]; 

Hanna  (Ky.),  18  S.  W.  Rep.  227.  Foley    v.    McCarthy    (Mass.),    32   N.    E. 

2  Winnipisiogee     Paper     Co.     v.    New  Rep.  669;  Knight   v.    Elliott,  57  Mo.  317 
Hampshire    Land    Co.    (C.  C.),    59  Fed.  [1874]. 

Rep.  542;  Land   Co.  v.  Saunders,  103  U.  6  Beltz  v.  Mathiowitz  (Minn.),  75  N.W. 

S.  316,  distinguished.  Rep.  699;  Busk  v.  Manghum  (Tex.),  37 

8  Cooper  v.  Deal  (Mo.),  22  S.  W.  Rep.  S.  W.    Rep.  459. 

31;  Warden  v.  Harris    (Tex.),    47   S.  W.  7  Taylor  v.  Fomby  (Ala.),  22  So.   Rep. 

Rep,  834  [1898].  910  [1897]. 


397  CONFLICT   OF  CALLS  IN  DESCRIPTION.  §  578. 

official  surveyors,  the  presumption  is  that  such  objects  actually  existed  *  and: 
were  established  at  the  places  indicated  by  the  field-notes.  The  burden  of 
proving  otherwise  is  on  him  who  disputes  their  correctness.2 

Courses,  distances,  and  area  as  given  by  the  field-notes  of  a  government 
survey  will  control  in  ascertaining  the  corners  of  a  survey  where  the  monu- 
ments established  by  the  government  surveyors  cannot  be  found.3  The 
course  must  yield  whenever  the  monuments  are  certain  or  are  capable  of 
being  made  certain.  If  the  monuments  cannot  be  found  or  their  locations 
established,  then  resort  must  be  had  to  the  courses  and  distances.4 

All  disputes  as  to  the  boundaries  of  land  are  to  be  governed  by  the  United 
States  surveys  unless  there  is  some  statute  to  the  contrary.5  A  corner  called 
for  in  the  field-notes  of  an  original  survey  marked  on  the  ground  by  the: 
surveyor  at  the  time  of  the  survey,  so  that  it  can  be  identified,  controls  a  claim 
for  another  object,  as  another  corner,  when  it  is  shown  that  the  surveyor  did 
not  go  on  the  ground  and  establish  such  other  corner,  but  merely  supposed, 
that  course  and  distance  from  the  other  corner  would  reach  it.6 

The    section   corner  located    by  the    government   surveyors   will   control 
though  it  be  in  a  place  different  from  that  given  in  the  field-notes  and  plat.7 
It  is  none  the  less  a  government  corner  because  it  is  not  in  ihe  township  line, 
and  must  be  observed  and  regarded  in  the  location  of  other  corners  lost  or 
destroyed.8 

578,  When  Monuments  are  Lost  or  Destroyed. — The  monuments  them- 
selves need  not  exist,  for  where  they  are  gone  they  may  be  supplied  by  proofs- 
of  their  former  existence.9  Their  former  site  or  location  must  be  established 
with  reasonable  certainty,  in  order  that  they  shall  prevail  over  the  lines  estab- 
lished by  explicitly  given  courses  and  distances,  or  to  govern  an  evident  error 
of  description  by  courses  and  distances. 10 

Where  field-notes  call  for  unmarked  lines  of  surrounding  older  surveys, 
the  position  of  which  can  be  actually  ascertained,  and  there  is  no  evidence  as ' 
to  how  the  survey  was  actually  made,  it  will  be  presumed  that  the  surveyor 

iKuechler  v.  Wilson  (Tex.   Sup.),    18  7  Peterson  v.  Skjelver  (Neb.),  62  N.  W. 

S.  W.  Rep.  317.  Rep.  43,  Lampe  v.  Kennedy,  49  Wis.  601; 

2Greer  v.  Squire  (Wash.),  37  Pac.  Rep.  Stoll  v.  Beecher  (Cat.),  29  Pac.  Rep.  327. 

545-  8McClintock    v.    Rogers,    n    111.    279; 

3  Carter  v.  Hornback  (Mo.),  40  S.  W.  Major  v.  Watson,  73  Mo.  661  [1881]. 
Rep.  893;  Beardsley  «?.  Crane  (Minn.),  9  Major  v.  Watson,  73  Mo.  661  [1881]; 
54  N.  W.  Rep  740;  Deaver  v.  Jones  (N.  Morse  v.  Rollins,  121  Pa.  St.  537;  Beltz 
C.),  26  S.  E.  Rep.  156;  Blair  v.  Brown  v.  Mathiowitz  (Minn.),  75  N.  W.  Rep. 
(Wash.),  50  Pac.  Rep.  483  [1897].  See  699.  Parol  proof  is  admissible.  Broad- 
Holler  v.  Emerson  (Cal.),  44  Pac.  Rep.  dus  v.  Eubanks  (Ky.),  388.  W.  Rep.  134; 
1073.  Greely  v.  Weaver  (Me.),  13  Atl.  Rep.  575 

*Whitcomb    v.    Dutton    (Me.),   36  Atl.  [1888]. 

Rep.  67;    Major    v.  Watson,  73    Mo.  661  10  Vanish  z/.  Tarbox  (Minn.),  51  N.  W. 

[1881].  Rep.    1051;  Stoughton    v.   Rice  (Ky.),  32^ 

6  Taylor  v.  Fomby  (Ala.),  22   So.  Rep.  S.  W.  Rep.    1083.     See  Black    v.  Walker 

910  [1897].  (N.  D.),  75  N.  W.  Rep.  787. 

*Cox  v.  Finks  (Tex.),  41  S.W.  Rep.  95. 


§579-          OPERATIONS  PRELIMINARY    TO    CONSTRUCTION.  398 

actually  made  the  survey  on  the  ground,  and  such  unmarked  lines  will  prevail 
over  calls  for  courses  and  distances  in  case  of  conflict,1 

A  grant  is  always  to  be  interpreted  with  reference  to  monuments  and  cir- 
cumstances existing  at  the  time  of  the  conveyance,  and  cannot  be  extended 
so  as  to  include  other  lands  by  an  implication  or  by  a  conjecture  that 
possibly,  had  the  parties  foreseen  changes  in  matters  affecting  the  grant,  they 
might  have  made  it  in  other  and  different  terms.2 

579.  In  Government  Surveys  it  is  the  Original  Monuments  that 
Control. — In  the  rule  that  monuments  control  courses  and  distances,  and  that 
when  monuments  and  measurements  vary  the  monuments  always  control, 
the  reference  is  to  monuments  and  measurements  made  by  the  original  survey.3 

The  object  of  a  survey  should  be  to  locate  the  original  monuments;  and  a 
later  survey  made  by  an  official  surveyor,  and  monuments  erected  in  accord- 
ance with  it,  are  not  alone  sufficient  to  overcome  the  evidence  afforded  by 
monuments  already  existing.  It  must  be  shown  that  the  new  monuments 
were  in  fact  correct  and  that  the  earlier  ones  were  not  correct. 4 

Where  there  are  two  conflicting  monuments,  one  of  which  corresponds 
with  the  courses  and  distances,  that  one  should  be  taken,  and  the  other 
rejected  as  surplusage.5  If  the  boundary  be  not  known  and  fixed,  the  courses 
and  distances  will  determine  it.6 

In  the  absence  of  calls  for  artificial  or  natural  objects,  the  lines  of  a  survey 
are  controlled  by  courses  and  distances; 7  and  where  a  surveyor  makes  a  mis- 
take in  supposing  that  he  has  reached  the  western  lines  of  an  older  survey 
when  running  the  course  and  distance  called  for,  the  calls  for  course  and 
distance  should  control  in  locating  boundaries.8 

The  true  corner  of  a  governmental  subdivision  of  land  is  where  the  United 
States  surveyors  in  fact  established  it.9  The  resurvey  must  follow  the 
boundaries  and  monuments  as  run  by  the  original  survey,  if  the  monuments 
can  be  found,  or  the  places  where  they  were  originally  placed  identified.10  If 

1  Waggoner  v.  Daniels  (Tex.),  44  S.  W.  6  Hanson  v.  Red  Rock  Tp.  (S.   D.),  57 

Rep.  046  ri8o81.  N.  W.  Rep.  n;  Aransas  Pass  Col.  Co.  v. 

8  White's  Bank  v.  Nichols,  64  N.  Y.  65;  Flippen  (Tex.),  29  S.  W.  Rep.  813. 

Falls    Village   W%-p.  Co.   v.  Tibbetts,  31  7  Ratliff  v.   Burleson    (Tex.),  25  S.  W. 

Conn.  165;  Banks   v.  Ogden,  2  Wall.  57:  Rep.  983. 

Tibbetts  v.  Estes,  52  Me.   566;  Weisbrod  8  Aransas     Pass    Colonization    Co.    v. 

v.  C.  &   N.  W.  R.  Co.,  18  Wis.  35;  Kirk-  Flippen  (Tex.  Civ.  App.),  298.  W.  Rep. 

bam  v.   Sharp,    I    Whart.    323;    Cook  v.  813. 

McClure    58  N.  Y.   437;  Minor  v.  Kirk-  9  Beardsley  v.  Crane  (Minn.),  54  N.  W. 

land  (Tex.),  20- S.  W.  Rep.  932.     And  see  Rep.  740.    Semble,  Blair  v.  Brown(  Wash.), 

Holland  w.  Thompson   (Tex.),    35   S.  W.  50  Pac.  Rep.  483;  Deaver  v.  Jones  (N.  C.), 

RPO    T9-  26  S.   E.    Rep.   156;   Briton  v.  Ferry,   14 

3  Woodbury  v.  Venia  (Mich.),  72  N.W.  Mich.  53:  Johnson  v.  Simerly  (Ga.),  16  S. 

Rep    180    [1897!;  Morrison  v.    Seamans,  E.  Rep.  9?!. 

?8s  Pa?  St.  74  10  Randall  v.  Burk  Tp.  (S.  D.).  70  N.W. 

*Stowers    v.  Gilbert    (Sup.),    33  N.  Y.  Rep    837;   Peterson  v.  Skjelver  (Neb.),  62 

Supp.  TOI;  Knippa  v.  Umlang  (Tex.),  27  N.  W.  Rep.  43;  Diehl  v.  Zanger,  39  Mich. 

S.  W   Rep.  91?.  601  I  Meydenbauer  v.  Stevens  (D.  C.),  78 

5Zeibold  v.  Foster  (Mo.  Sup.),  24  S.  W.  Fed.  Rep.  787;  Dowdle  v.  Cornue  (S.  D.), 

Rep.  155.  68  N.W.  Rep.  194. 


399  CONFLICT   OF  CALLS  IN  DESCRIPTION.  §  580. 

there  is  a  conflict  between  the  quantity  expressed  in  the  patent  and  that  shown 
by  the  survey,  the  latter  will  control.1 

Where  the  stakes  found  conflict  with  the  field-notes,  the  burden  of  show- 
ing that  the  stakes  were  monuments  of  the  original  survey  is  on  the  party 
claiming  to  the  stakes.2 

580,  Identification  of  Monuments — Evidence  Admissible.* — In  the  proof 
of  bounds  and  monuments  almost  any  evidence  is  admissible  to  identify 
those  named  in  a  description.  Trees  and  stumps  are  frequently  referred  to  as 
monuments  in  a  new  country  and  in  farm  surveying,  and  it  is  frequently 
necessary  or  desirable  to  prove  the  age  of  certain  trees,  or  the  number  of  years 
which  have  elapsed  since  certain  marks  or  blazings  were  made.  To  this  end, 
efforts  have  been  made  on  several  occasions  to  introduce  blocks  cut  from 
trees  showing  the  rings  of  growth,  one  of  which  is  supposed  to  be  added  each 
year  in  deciduous  trees.  Such  blocks  were  admitted  and  the  rings  of  growth 
counted  to  prove  the  date  at  which  an  early  survey  had  been  made.3 

In  another  case  where  there  was  no  proof  offered  that  the  number  of 
annual  concentric  layers  or  rings  in  the  trunk  of  a  tree  did  correspond  with 
the  years  of  its  age,  the  court  held  that  the  hypothesis  about  the  formation  of 
each  one  of  such  concentric  layers  could  not  be  judicially  received  as  evidence 
to  show  the  period  which  ha'd  elapsed.  The  point  to  be  determined  was 
whether  in  the  growth  of  trees  a  concentric  layer  of  wood  under  the  bark  was 
a  ring  of  invariable  formation  or  not.  The  opinion  of  the  court  contains  a 
most  interesting  discussion  upon  the  subject  of  forestry  and  the  growth  of 
vegetation. 4 

Where  the  best  evidence  of  the  location  of  a  displaced  monument  in  the 
boundary  between  two  surveys  is  not  introduced,  but  other  evidence  thereof 
is  admitted  without  objection,  a  finding  in  accordance  therewith  is  not  with- 
out support.5 

On  an  issue  as  to  the  location  of  the  lines  of  several  surveys,  field-notes 
of  one  of  the  earlier  ones  are  admissible  where  they  would  aid  in  the  location 
of  the  lines  of  any  of  the  others,  and  show  that  one  of  the  lines  therein,  being 
a  marked  boundary,  would  be  recognized  by  the  same  surveyor  when  subse- 
quently making  another  of  the  surveys.6 

Old  mounds  with  pits  and  stakes,  having  the  appearance  of  government 
mounds,  found  at  points  distant  from  the  points  indicated  by  the  government 
field-notes  by  courses  and  distances,  afford  but  slight  evidence  that  they  are 
the  original  government  mounds,  unless  they  have  existed  for  a  long  time, 

1  Stonewall    Phosphate  Co.  v.   Peyton  *  Patterson    v.  M'Causland,  3    Eland's 
(Fla.),  23  So.  Rep.  440  [1897].  Ch.  Repts.  69  [1841]. 

2  Robinson    v.    Laurer  (Oreg.),  40  Pac.  6  Peters  v.  Gracia  (Cal.),  42  Pac.  Rep. 
Rep.  1012.  455. 

'Cross  v.  Tyrone  M.  &  M.  Co.,  121  Pa.  6  Daniels  v.   Fitzhugh  (Tex.),  35  S.  W. 

St.  394.  Rep.  38. 

*  See  Sees.  617-640,  infra. 


§  S^1-          OPERATIONS  PRELIMINARY    TO    CONSTRUCTION.  4CO 

and  have  been  generally  recognized  as  the  undisputed  government  corners.1 

A  river  will  not  control  metes  and  bounds  when  it  is  not  clear  that  such 
was  the  intention,  when  another  natural  monument  could  more  properly  be 
adopted  as  a  boundary,  and  when  the  identity  of  the  land  can  be  sufficiently 
established  from  the  distances  given  in  connection  with  the  acreage.2 

If  the  evidence  shows  that  a  half  section  corner  was  located  at  a  certain 
point,  the  court  should  establish  the  corner  at  that  point  even  though  such 
point  is  not  equidistant  from  the  section  corners  on  either  side  of  it. 3 

Oral  evidence  is  admissible  to  establish  the  boundaries  of  land  conveyed.4 
Where  there  is  a  conflict  in  the  calls  of  a  railroad  survey,  parol  testimony  is 
admissible  to  show  where  the  metes  and  bounds  of  the  surveys  were  actually 
run  and  marked  upon  the  ground.5 

Where  the  evidence  is  conflicting  as  to  the  identity  of  a  corner  forming  a 
boundary,  the  question  is  for  the  jury.6 

Where  there  is  no  evidence  as  to  how  a  survey  was  made,  the  presumption 
of  law  is  that  it  was  actually  made  on  the  ground  as  the  law  requires,  and 
this  presumption  cannot  be  silenced  by  the  mere  opinion  of  a  surveyor  who 
testifies  that  it  was  not  so  made.7 

581.  Fences   as  Monuments. — Fences  not  referred  to  in  a  deed  cannot 
control  the  distances  stated  in  the  deed.8     The  position  of  old  fences  may  be 
considered    in    ascertaining    disputed    boundaries.9      As    between    the   old 
boundary  fences  and  any  survey  made  for  the  monuments  after  dispute,  the 
fences  are  by  far  the  better  evidence  of  what  the  lines  of  the  lot  actually  were.10 
A  fixed,  visible  monument  can  never  be  rejected  as  false  or  mistaken  in  favor 
of  mere  courses  and  distances,  as  a  starting-point,  when  there  is  nothing  else 
in  the  terms  of  the  grant  to  control  and  override  the  fixed  and  visible  call.11 

582.  Natural  Monuments,  as  Roads,  Streams,  and  Ways.* — Fixed  monu- 
ments control    courses  and   distances  in  a  description   of  land   in  a  deed. 
Where  a  river  or  highway  or  railroad  is  made  a  boundary-line,  it  is  a  fixed 
monument   the   same   as  the   starting-point   in   a   survey,    and   the  distances 
between  such  monuments  have  little  weight  in  the  interpretation  or  determina- 
tion of  the  survey. 12 

1  Hanson  v.  Red  Rock(S.  D.),  57  N.  W.  910  [1897]. 

Rep.  ii.  7  Aransas    Pass    Col.    Co.    v.    Flippen 

3Hostetter   v.  Los    Angeles   Terminal  (Tex.),  29  S.  W.  Rep.  813. 

Ry.  Co.  (Cal.),  41  Pac.  Rep.  330.  8  Kashman  v.  Parsons  (Conn.),  39  Atl. 

3Doolittle  v.  Bailey  (Iowa),  52  N.  W.  Rep.  179  [1898]. 

Rep.  337;  Walrod   v.  Flanigan   (la.),  39  9  Hoffman    v.     City    of     Port     Huron 

N.  W.  Rep.  645  [1888].     But  see  Williams  (Mich.),  60  N.  W.  Rep.  831. 

v.  Winslow  (Tex.),  19  S.  W.  Rep.  513.  10  Stewart  v.  Carlton,  31  Mich.  270. 

4Broaddus  v.  Eubanks  (Ky.),  38  S.  W.  "Gerrard  v.  Silver  Peak   Mines  (U.  S. 

Rep.  134.  C.  C.),  82  Fed.  Rep.  5?8  [1897]. 

6  Minor  v.   Kirkland   (Tex.),   20  S.  W.  12  Piper  v.  Connolly,  108  111.  646  [1884]; 

Rep.  932.  Church  v.  Stiles  (Vt.),  10  Atl.  Rep.  674 

6  Deaver  v.  Jones  (N.  C.),  26  S.  E.  Rep.  [1887]. 
156;  Taylor  v.  Fomby  (Ala.),  22  So.  Rep. 

*See  Sees.  401-460,  supra. 


|OI  CONFLICT   OF  CALLS  IN  DESCRIPTION.  §  583. 

A  call  for  a  river  as  a  boundary-line  overcomes  distance  and  quantity  in 
the  absence  of  any  ambiguity  in  the  description.1 

Where  a  call  was  a  corner,  of  a  lot  in  an  incorporated  town,  and  the  other 
call  was  the  low-water  line  of  a  navigable  stream,  it  was  held  that  both  monu- 
ments must  be  considered  to  determine  the  location  of  the  land  even  if  they 
did  not  correspond  with  the  courses,  distances,  or  quantity  given  in  the 
description.  The  courses  and  distances  were  made  to  conform  to  the  natural 
and  artificial  monuments  named  as  boundaries.2 

Where  the  description  of  land  is  by  metes  and  bounds,  and  it  is  complete 

in  itself,  and  it  excludes  a  certain  road  and  reference  to  said  road  for  the 

purpose  of  designating  the  point  from  which  the  description  starts  and  the 

course  of  a  line  therefrom,  it  has  been  held  not  to  show  an  intention  to  make 

"the  road  a  boundary  of  the  land  except  as  it  coincides  with  the  description.3 

583.  Calls  for  Adjoiners  against  Courses  and  Distances. — The  second 
factor  of  importance  in  the  calls  of  a  description  is  that  of  adjoining  estates. 
It  is  submitted  that  this  may  be  a  mere  reference  to  other  elements  contained 
in  the  description  of  the  adjoining  estate.  A  reference  in  a  description  to 
an  adjoining  tract  which  is  itself  located  by  courses  and  distances  would  be  a 
reference  to  courses  and  distances,  and  it  will  be  difficult  to  understand  how 
a  reference  to  courses  and  distances  in  the  deed  of  an  adjoining  estate  can 
govern  the  same  elements  of  the  deed  of  land  to  be  located. 

If  the  adjoining  premises  are  definitely  located  by  monuments  or  by 
boundaries  that  have  been  long  acquiesced  in  and  agreed  upon,  and  have  been 
generally  known,  then  no  doubt  this  will  be  a  governing  element.  It  is  pre- 
sumed that  a  reference  in  a  description  to  an  adjoining  estate  the  description 
of  which  was  clear  and  certain  might  control  a  confused  and  uncertain 
description; 4  but  it  cannot  be  believed  that  an  estate  bounded  by  an  adjoin- 
ing estate  would  be  controlled  thereby  unless  the  adjoining  estate  was  more 
definitely  and  certainly  located  than  the  one  described  by  it.5 

Calls  in  a  deed  fixing  the  boundaries  of  the  land  conveyed  by  lands  of 
adjacent  owners  will  control,  when  these  boundaries  are  well  defined,  though 
there  is  a  deficiency  in  the  number  of  acres.6 

Under  the  rule  that  that  is  certain  which  can  be  made  certain,  a  descrip- 
tion bounding  a  grant  by  the  northern  line  of  a  prior  grant  is  sufficiently 
definite  if  referred  to  under  circumstances  making  it  a  controlling  call, 
although  said  northern  line  has  never  been  marked  upon  the  ground.7  It  is, 
for  all  the  practical  purposes  of  defining  the  lands  embraced  in  it,  the  same  as 
to  say  "go  to,  and  run  with,  the  lines  of  such  grant."  8 

1  Lampman   v.  Van   Alstyne  (Wis.),  69  W.  Rep.  19. 
N.  W.  Rep.  171.  e  Gugliemi  v.  Geismar  (La.),  14  So.  Rep. 

a  Sayers  v.  Lyons,  no  Iowa  249  [1859].  501. 

3Lankin  v.  Terwilliger  (Oreg.),  29  Pac.  7  Winnipisiogee     Paper     Co.     v.    New 

ReP-  268-  Hampshire    Land   Co.    (C.  C.),    59   Fed. 

Chesley  v.  Holmes.  40  Me.  536.  Rep.  542. 

5Fullam  v.   Foster  (Vt.),  35   Atl.   Rep.  8  O'Dell  v.  Swaggerty  (Tenn.),  428.  W 

484;  Holland   v.   Thompson  (Tex.),  35  S.  Rep.  175  [1897]. 


§  584-          OPERATIONS  PRELIMINARY    TO    CONSTRUCTION.  4O2 

However,  where  a  call  for  a  line  read,  "  south  360  chains  to  a  stake 
supposed  to  be  in  D.  's  line,  thence  with  his  line  390  chains  to  his  N.  E. 
corner,"  and  360  chains  south  did  not  reach  D. 's  line,  the  call  for  the  stake 
being  indefinite  and  uncertain,  the  call  for  course  and  distance  was  held  to 
control,  especially  where  D. 's  line  was  not  established  by  fixed  monuments.1 

The  rule  is  well  established  that  where  land  is  described  by  courses  and 
distances,  and  also  by  calls  for  adjoiners,  the  latter  will  govern  if  there  be  a 
discrepancy  and  there  are  no  monuments.2 

The  adjoining  land  so  referred  to  becomes  a  monument  which  will  control 
distances;  and  a  grantee  who  accepts  such  a  deed  bounding  him  by  another's 
land  can  hold  no  portion  of  the  other's  land  even  though  the  latter 's  deed 
was  from  the  same  grantor  and  was  not  legally,  though  actually,  recorded.3 
If  the  adjoiner's  land  is  described  by  metes  and  bounds,  the  grantee  is  limited 
to  the  tract  described  in  his  deed  by  metes  and  bounds,  though  the  area  be 
less  than  it  was  the  intention  of  the  parties  to  convey.4 

The  official  survey  and  plat  of  any  town  site  located  on  government  lands, 
and  the  lots  and  blocks  thereof,  are  permanent  landmarks,  which  may  be  con- 
sidered in  establishing  the  location  of  adjoining  lands  outside  the  town-site.5 

584.  Calls  for  Adjoiners  against  Points  of  Compass. — Where  a  descrip- 
tion was  confused  as  to  the  points  of  the  compass,  and  land  was  described  as 
bounded  on  the  east  by  a  road,  when  the  road  was  on  the  south,  on  the  south 
by  land  of  M.,  instead  of  on  the  west,  it  was  held  to  be  a  question  of  fact,  to 
be  ascertained  by  the  language  used  and  the  adjoiners  called  for,  and  that  for 
the  purposes  of  that  construction  the  points  of  the  compass  specified  should 
yield  to  the  adjoiners  actually  intended  and  called  for.6 

Where  a  southern  boundary  is  described  as  beginning  at  a  certain  corner, 
and  running  " thence  east  to  the  southwest  corner  of  the  land  of  C.,"  such 
corner  becomes  a  monument  of  description;  and  if  its  location  is  definitely 
ascertained,  the  boundary  will  be  indicated  by  a  straight  line  running  from 
the  point  named  to  the  southwest  corner  of  C. 's  land,  though  the  line  would 
run  in  a  southeasterly  direction,  and  the  quantity  of  land  conveyed  would  be 
about  35  acres,  instead  of  30  acres,  more  or  less,  as  given  in  the  conveyance.7 
But  where  a  call  for  another  survey,  if  followed,  will  necessitate  a  total 
disregard  of  course  and  distance,  and  cause  the  remaining  bounds  both  to 
conflict  with  several  other  surveys  and  to  end  so  far  from  the  starting-point  as 

1  Brown  v.  House  (N.  C.),  248.  E.  Rep.       9  Atl    Rep.  354  [1887]. 

786,  A  very  and  Clark,  JJ.,  dissenting.  *  Probett    v.    Jenkinson    (Mich.),  63   N. 

2  Koch  v.  Dunkel,  90  Pa.  St.  264  [1879];       W.  Rep.  648;  Gugliemi  v.  Geismar  (La.), 
Langerman   v.   Nichols  (Tex.),  32  S.   W.        1480.  Rep.  501. 

Rep.    124;    Smith    v.    Headrick.  93  N.  C.  5  Carroll  v.  Price  (D.  C.),  81  Fed.  Rep. 

2TO  [1885];  Connor  v.  Johnson  (S.  C.),  30  137. 

S    E.  Rep.  833  [1898];  Fullam    v.  Foster  6  Stroupe  v.   McCloskey  (Pa.),  10  Atl. 

(Vt.)f    35   Atl.    Rep.  484;  Smith  v.  Catlin  Rep.  42,481  [1887]. 

Ld.  &  Imp.  Co.  (Mo.),  22  S  W.  Rep.  1083.  7  Abbey  v.  McPherson  (Kan.  App.),  41 

.3  Bryant  v.  Maine  Cent.    R.    Co.  (Me.),  Pac.  Rep.  978. 


403  CONFLICT  OF  CALLS  IN*  DESCRIPTION.  §  586. 

to  exclude  about  1000  acres  from  the  survey,1  it  is  properly  ignored.  Where 
the  boundaries  of  a  survey  cannot  be  located  by  its  own  calls  and  field-notes, 
they  may  be  established  by  the  field-notes  of  adjacent  surveys.2 

In  a  case  where  the  surveyor's  field-notes  showed  actual  surveys  on  the 
ground,  and  the  lines  and  corners  thereof  were  called  for  as  contiguous,  and 
evidence  of  such  surveys  was  found  which  reasonably  indicated  an  excess  in 
the  distance  of  the  lines  of  260  varas  in  7116  varas,  at  the  date  of  the  survey 
(1856)  considered  trifling,  and  a  slight  variance  of  75  varas  in  the  course, 
these  discrepancies  were  held  insufficient  to  overcome  the  other  evidence 
pointing  to  the  fact  that  the  surveys  were  contiguous.3 

Where  the  description  in  a  deed,  after  following  the  line  of  another  tract 
to  a  certain  point,  contains  a  clause,  "thence  with  that  line  to  a  stake  on  the 
west  bank  of  the  branch,"  it  should  be  construed  as  intending  to  follow  the 
boundaries  of  such  tract,  though  the  courses  change  before  reaching  the 
branch,  and  though  the  branch  would  be  reached  at  a  less  distance  by  follow- 
ing an  extension  of  the  first  course  from  the  point  in  question.4 

585.  Adjoining  and  Cornering  Estates. — As  to  whether  a  tract  of  land 
must  lie  alongside  of  another  to  be  "  adjoining  "  has  been  determined  by  the 
courts,  which  have  held  that  if  two  tracts  of  land  touch  each  other  at  a  corner 
but  do  not  lie  alongside,  they  are  adjoining.      It  was  so  held  when  it  was 
agreed  that  a  railroad  company  would  erect  a  depot  upon  a  certain  tract  of 
land  that  was  adjoining  another  tract  of  land.5 

A  call  for  land  contiguous  to  another  tract  has  been  held  to  require  actual 
contact  or  a  touching  of  the  estates,  in  the  absence  of  anything  in  the  deed 
to  show  that  the  word  was  used  in  any  other  sense.6 

586.  Calls  for  Courses  against  Distances. — The  third  factor  in  order  of 
importance  is  the  course,  which  is  usually  held  to  govern  the  distance.      Such 
a  rule   of  construction   has  been   maintained  for  generations,   but  for  what 
reason  is  not  apparent  to  surveyors  of  to-day.      With  modern  instruments  and 
the  skill  with  which  the  more  enlightened  surveyor  of  to-day  handles  them, 
there  can  be  no  just  reason  for  a  preference  of  the  call  for  courses  over  a  call 
for  distances.     If  one  is  preferred  to  the  other,  it  must  be  due  to  attendant 
circumstances.     The    courts   in    many    cases   have   acknowledged   this   and 
modified  their  rules  accordingly.      The  better  law  of  to-day  is  that  there  is  no 
fast  and  firm  rule  that  obliges  a  court  or  surveyor  to  prefer  the  one  or  the 
other.      If  any  preference  is  given,  it  must  depend  upon  the  circumstances  of 
each  particular  case.7     There  is  no  arbitrary  rule  that  the  courses  or  the  dis- 

1  Gregg  v.  Hill   (Tex.),    17  S.  W.  Rep.  5  Fitzgerald  v.  Britt,43la.  498. 

838.  «Holston    S.    &    P.    Co.    v.    Campbell 

2Kuechler  v.  Wilson  (Tex.  Sup.),  18  S.  (Va.),  16  S.  E.  Rep.  274. 

W  -Rep.  317.  'Justice  Story  in  Preston   v.  Bowman, 

'Graham  v.  Dewees  (Tex.  Sup.),  20  S.  6  Wheat.  580  [1821];  Ratliff  v.  Burleson 

W.  Rep.  127.  (Tex.).    26    S.   W.    Rep.     1003.     And    see 

4  Buckner  v.  Anderson  (N.  C.),  i6S.  E.  Loring    v.     Newton,    8    Greenl.    61      68 

Rep.  424.  [T83i] 


§53;. 


OPERATIONS  PRELIMINARY    TO    CONSTRUCTION. 


404 


tances  shall  govern.  It  must  depend  upon  the  circumstances  of  each 
particular  case.  If  marked  lines  and  corners  are  established,  they  will  govern, 
and  other  descriptions  must  yield  to  them. 1 

If  the  description  contains  no  patent  ambiguity,  but,  on  its  application  to 
the  land  described,  it  results  in  a  lot  of  the  most  singular  shape,  plainly  never 
intended  by  the  parties,  there  is  no  error  in  ignoring  the  calls  for  courses  and 
applying  only  the  calls  for  distance.2 

587.  Courses  Held  to  Govern  Distances,3 — It  is  well  to  remember,  how- 
ever, that  there  has  been  a  rule  that  courses  shall  govern  distances,  and  that 
courts  are  likely  to  adhere  to  such  precedents.  Whether  due  to  their  con- 
servatism or  to  their  ignorance  of  modern  methods  of  surveying,  they  are 
likely  to  favor  courses  and  give  them  the  greater  weight  when  in  conflict  with 
distances.  In  a  comparatively  recent  case  (1887)  it  was  held  that  a  line 
described  as  running  at  right  angles  to  a  street  was  not  varied  because  the 
next  call  of  30  feet  was  in  fact  33^-  feet.  The  angle  was  held  to  control.4 

A  Massachusetts  case  prominently  brings  out  the  features  of  this  ancient 
rule. 5  A  lot  occupying  an  acute-angled  corner  was  described  as  * '  beginning 
at  the  corner,  thence  northerly  by  W.  St.  134  feet,  to  land  of  G.,  thence 
running  westerly  by  land  of  G.  60  feet,  thence  running  southerly  by  land  of 
said  G.  at  right  angles,  to  Dix  St. ,  thence  6 1  feet  more  or  less  to  the  first- 
mentioned  bound  (corner)  containing  7770  feet  more  or  less."  Here  was  a 
conflict  between  a  distance  and  area  on  one  hand  and  a  course  (right  angle) 
on  the  other  hand.  The  actual  distance  from  the  corner  when  the  line  was 
drawn  at  right  angles  was  8o|-  feet,  against  61  feet  called  for  in  the  description; 
and  the  area  9100  square  feet,  against  7770  square  feet  mentioned  in  the  con- 
veyance. If  the  line  were  run  southerly  parallel  to  W.  street,  the  distance 
actually  measured  would  be  60^  feet  and  the  area  exactly  7770  square  feet  as 
required,  and  the  angle  would  be  81  degrees  instead  of  a  right  angle 
(90  degrees).6 

Such  a  check  could  not  fail  to  satisfy  a  most  exacting  and  cautious 
surveyor,  but  the  court  held* that  as  a  matter  of  law  the  line  should  be  run  at 
right  angles  notwithstanding  the  checks  afforded  by  the  distance  and  area. 
The  court  refused  to  admit  evidence  of  the  fact  that  the  adjoining  lots  had  been 
conveyed  by  the  same  common  grantors  according  to 'a  plan,  which  plan 
showed  the  lines  parallel  to  W.  street  and  the  distance  to  be  6o£  feet  on  Dix 


1  Goodman  v.  Myrick,  5  Oregon  65; 
Palms  v.  Shawano  Co.,  61  Wis.  211  [1884]; 
Meade  v.  Leon,  etc.,  Co.  (Tex.),  22  S.W. 
Rep.  298. 

2Tolkin  v.  Anderson  (Tex.),  19  S.  W. 
Rep.  350. 

3  Courses  were  held  to  govern  dis- 
tances in  the  following  cases:  Hall  v. 
Eaton,  139  Mass.  217:  Platt  v.  Bente  (N. 
J.),  10  Atl.  Rep.  283  [1887];  Smith  v.  Im- 
provement Co.  (Mo.  Sup.),  22  S.W.  Rep. 


1084;  Harding  v.  Wright  (Mo.  Sup.),  24 
S.  W.  Rep.  211;  Duncan  v.  Hall  (N.  C.), 
23  S.  E.  Rep.  362;  Rand  z>.  Cartwright 
(Tex.),  18  S.  W.  Rep.  794- 

4  Platt  v.    Bente  (N.  J.),  10  Atl.    Rep. 
283  [1887]. 

5  Hall  v.  Eaton,  139  Mass.  217. 

6  Hall  v.  Eaton,  139   Mass.   217   [1885]: 
Platt  v.  Bente    (N.  J.),    10  Atl.  Rep.    283 
•[1887];  Iverson  v    Swan    (Mass.),  48    N. 
E.  Rep.  282. 


4O5  CONFLICT  OF  CALLS  IN  DESCRIPTION.  §  587, 

street,  that  the  line  did  not  make  a  right  angle  with  Dix  street,  and  that  the 
grantors  of  the  grantees  saw  the  plan  before  they  took  the  deed ;  and  it  also 
refused  evidence  that  a  fence  had  been  erected  upon  the  line  parallel  to  W. 
street  with  the  parties'  consent,  and  had  remained  there  several  years.  The 
matter  of  law  maintained  by  the  court  seems  to  have  been  that  the  descrip- 
tion was  complete,  clear,  and  certain  in  itself,  and  that  therefore  no  extrinsic 
evidence  could  be  admitted ;  that  as  the  plan  was  not  mentioned  in  the  deed 
it  could  not  be  referred  to ;  and  that  to  the  court  it  appeared  that  the  intention 
of  the  parties  was  that  the  third  line  be  perpendicular  to  Dix  street,  and  not 
parallel  to  W.  street. 

It  may  be  said  that  generally  areas  are  a  direct  function  of  the  distances, 
and  therefore  when  compared  with  courses  they  should  not  be  given  much 
weight  in  deciding  which  should  control;  but  in  such  a  case  as  the  one  just 
considered  it  seems  that  the  area  affords,  to  say  the  least,  sufficient  evidence 
to  show  that  the  angle  could  not  be  a  right  angle,  and  to  create  an  uncer- 
tainty sufficient  to  allow  evidence  outside  of  the  deed.  This  case  is  cited  to 
prove  that  courses  may  be  taken  as  governing  distances.  It  was  not  decided 
on  that  ground,  but  rather  upon  the  ground  mentioned,  that  it  best  carried 
out  the  evident  intention  of  the  parties. 1 

A  similar  but  plainer  case  came  up  in  the  New  York  courts  for  construc- 
tion. Land  situated  in  a  city  block  near  an  obtuse-angled  corner  was 
described  as  "  Beginning  at  ...  running  thence  northeasterly,  along  Grove 
Street,  25  feet;  and  thence  northwesterly  and  parallel  with  Woodruff  Avenue, 
1 08  feet  9  inches,  to  lot  No.  80  on  said  map;  thence  southwesterly,  along  lot 
No.  80,  25  feet;  and  thence  southeasterly  parallel  with  Woodruff  Avenue, 
1 08  feet  9  inches,  to  the  westerly  side  of  Grove  Street,  the  point  or  place  of 
beginning."  Lines  drawn  from  Grove  Street,  108  feet  9  inches,  parallel  to 
Woodruff  Avenue,  would  not  reach  lot  No.  80  by  5  inches,  and  it  was  held 
that  there  was  a  mistake  in  describing  the  length  of  the  lines  parallel  to  Wood- 
ruff Avenue,  and  that  it  was  intended  that  they  should  extend  109  feet  2 
inches,  and  not  that  they  should  run  in. such  a  direction  that  thej'  would  reach 
lot  80  at  a  distance  of  108  feet  9  inches  from  Grove  Street.  It  being  clearly 
stated  in  the  deed  that  the  lines  of  the  lot  were  parallel  to  Woodruff  Avenue, 
the  court  held  that  the  fact  that  the  corresponding  lines  in  the  conveyances 
of  neighboring  property  were  at  right  angles  to  Grove  Street,  instead  of  being 
parallel  to  Woodruff  Avenue,  was  immaterial.2  The  effect  of  such  a  decision 
upon  the  adjoining  property  owners  will  be  appreciated  by  surveyors,  if  other 
lots  had  been  laid  out  perpendicular  to  Grove  Street. 

A  specific  grant  of  land  by  courses  and  monuments  cannot  be  enlarged  so 
as  to  change  a  line  described  as  running  "  south  "  to  "  southeast,"  by  the 

1  Hall  v.  Eaton,  139  Mass.  217.  App.  Div.  34.     But  see  Airey  v.  Kunkle 

a  Casey   v.    Dunn,    8   N.  Y.    Supp.    305  (C.  P.),  6    Pa.    Dist.   Rep.   i,  18   Pa.  Co. 

[1890];   Airey  v.   Kimble,    42    Atl.    Rep.  Ct.  620. 

533.      See    Phillips    v.    Ritter    (N.  Y  ),  20 


§  5^8.  OPERATIONS  PRELIMINARY    TO    CONSTRUC7^ION.  406 

words  "  meaning  to  convey  the  north  half  of"  the  farm  of  which  the  land- 
conveyed  was  a  part.1 

588,  Calls  for  Courses  and  Distances  against  Area  or  Acreage, — Courses 
and    distances    will    always    control    quantity    where    the    intention    is    not 
definitely  ascertained.      As  quantity  or  area  is  directly  dependent  on  courses 
and  distances,  being  calculated  from  them,  it  should  be  controlled  by  them. 
If  the  distances  and  angles  of    a  survey  are   wrong,  the  area  is  likely  to  be 
erroneous,   and  therefore  area  is  held  the  last  and  the  least  important  ele- 
ment of  a  description.      This  is  the  universal  law.      Metes  and  bounds  and 
other  descriptive  calls  in  a  deed  will  control  the  call  for  quantity  unless  it 
clearly  appears  to  have  been  the  intent  of  the  grantor  to  give  only  a  definite 
quantity.2 

The  metes  and  bounds  govern  the  quantity  unless  it  appears  beyond  con- 
troversy that  the  quantity  was  one  of  the  principal  conditions  of  the  contract. a 

The  mention  of  the  acreage  or  area  of  a  field  after  a  description  is  not  a 
warranty  of  quantity,  unless  the  warranty  is  expressed.  Thus  the  following 
clause  inserted  after  a  description  by  metes  and  bounds,  ' '  and  containing  by 
survey  250  acres,"  is  descriptive  merely  and  not  a  warranty  of  quantity;  and 
although  the  same  deed  describes  and  conveys  another  tract  in  less  definite 
and  more  cautious  language,  e.g.,  "the  exact  number  of  acres  being 
unknown,  but  containing  by  estimate  120  acres,  be  the  same  more  or  less," 
this  difference  of  phraseology  does  not  show  that  a  warranty  was  intended  as 
to  the  quantity  in  the  tract.4 

A  deed  conveying  land  by  metes  and  bounds,  and  further  describing  it  as 
containing  a  certain  number  of  acres,  more  or  less,  which  was  more  than  was 
actually  included  in  the  description,  and  as  being  the  premises  now  in  the 
possession  of  the  grantor  and  formerly  conveyed  to  him  by  a  third  person,  will 
not  be  held  to  include  a  tract  of  wild  land  situated  some  distance  from  the 
other,  though  the  amount  of  land  in  such  tract  would  make  up  the  amount 
described  in  the  deed,  and  though  it  was  purchased  from  such  third  party.5  * 

589.  Quantity  of  Land  a  Factor  in  a  Description, — Little  importance  is 
attached  to  the  acreage  named  in  a  description,  as  "34.69  of  an  acre,  half  of 
the  south  side  of  the  southeast  side  of  section  14,"  when  this  is  immediately 

1  Reed  v.  Knights,  87  Me.  181.  173  [1865];  Farbell  v.  Bowman,  103  Mass. 

J  Evans'  Adm'r  v.  Temple,  35  Mo.  494;  341  [1869!;  Hodges  v.  Denny  (Ala.),  5  So. 

Colter  z/.   Mann,   18  Minn.    96;  Rioux  v.  Rep.  492  [1889]. 

Cormier    (Wis.),    44   N.    W.     Rep.    654;  *  Thayerz/.  Finton,  108  N.  Y.  394  [1888] ; 

Hodges    v.    Denney   (Ala.),  .5    So.    Rep.  Paine   v.    Upton,    87    N.    Y.   327    [1882]; 

492;  Doe  v.  Vallejo,  29  Cal.  386;  Quillen  Lobit  v.   McClave  (Tex.),  28  S.  \V.  Rep. 

v.    Betts  (Del  ),  39  All.   Rep.  595  [1897];  726;    Silver    Creek    Cem.    Co.    v.   Union 

Ratliff  v.  Burleson  (Tex.),  26  S.  W.  Rep.  Lime  &  Cem.   Co.   (Ind.),   35   N.   E.    Rep. 

1003:    Raymond    v.    Coffey,    5    Oreg.  132  125;  Lipscomb  v.   Underwood  (Tex.),  27 

[1873];   Hess  -v.  Cheney  (Ala.),  3  So.  Rep.  S.  W.  Rep.  155. 

791  [1888];  Thompsons.  Sheppard  (Ala.),  5Thayer    v.    Finton,     108     N.    Y.    394. 

5  So.  Rep.  [1889].  [1888].     But  see  Pierce  v.   Brown,  24  Vt, 

3  Bd.  of  Commrs.  v.   Younger,   29  Cal.  165  [1852]. 

*  See  Sees.  596,  597,  infra,  More  or  Less. 


407  CONFLICT   OF  CALLS  IN  DESCRIPTION. 

followed  by  a  description  giving  the  corners  and  boundaries  of  the  land.1  A 
phrase  in  a  deed  following  the  description,  "containing  111.7  acres,"  is  a 
representation  only  and  not  a  warranty  of  quantity.  Oral  evidence  is 
inadmissible  to  show  that  there  was  such  a  warranty  of  quantity.2 

When  there  is  ambiguity  in  a  description  the  quantity  of  land  specified 
should  be  considered  by  the  jury  in  connection  with  the  boundaries  named 
and  other  data,  to  determine  what  the  true  boundary  is.3 

The  rule  that  monuments  or  objects  mentioned  in  the  deed  control  metes, 
and  bounds  is  not  an  inflexible  one.  It  applies  only  when  the  intention  of 
the  parties  has  been  left  in  doubt  by  the  language  of  the  conveyance.4  The 
distances  and  quantity  are  entitled  to  some  weight  in  getting  at  the  intention, 
of  the  parties,  especially  where  they  more  nearly  harmonize  with  one  theory 
than  with  the  other.  Where  a  description  applied  to  two  tracts  of  land  one 
of  which  went  down  the  meanders  of  a  stream  about  three-quarters  of  a  mile, 
and  the  other  a  mile  and  a  quarter,  the  one  making  about  twenty-five  acres, 
and  the  other  three  hundred  and  forty  acres,  and  where  the  description  called 
for  twelve  acres  more  or  less,  it  was  held  that  the  court  could  come  to  but 
one  rational  conclusion,  and  that  was  that  the  nearer  monument  was  properly 
taken.5 

A  patent  is  not  invalid  because  embracing  10,000  acres  while  calling  for 
only  8000. 6  A  mistake  in  a  mortgage  by  which  "2000  acres  more  or  less" 
is  written  "200  acres  more  or  less,"  but  where  the  boundaries  are  correctly 
described,  is  sufficient  notwithstanding  the  mistake  in  quantity;  it  is  sufficient 
to  give  notice  to  the  subsequent  mortgagor.7  Any  excess  in  the  quantity  of 
land  in  the  survey  will  not  be  considered  unless  it  will  assist  in  determining 
the  original  location  of  the  disputed  line.8 

A  grantor  may  be  bound  by  the  express  terms  of  his  contract  of  sale  in 
respect  to  quantity.9 

590.  Effect  of  Representations  as  to  Quantity. — With  every  contract  of 
sale  there  is  annexed  a  warranty  that  the  thing  bought  or  sold  shall  correspond 
with  the  representation  made  at  the  time  of  concluding  the  contract  of  sale 
between  the  parties.  Especially  is  this  true  with  regard  to  quantity,  though 
it  is  largely  overlooked  with  regard  to  quality.  Such  a  warranty  is  neither 
waived  nor  destroyed  by  the  use  of  the  words  "more  or  less"  when  the 
number  of  acres  has  been  specified,  and  if  the  error,  afterwards  discovered,  is 

1  Stevens  v.  Wait,  112  111.  544.  v.  Smith  (Sup.),  26  N.,  Y.  Supp.  103. 

2  Hobein   v.    Frick,    69   Mo.    App.   262  6  Ballowe  v.   Hillman  (Ky.),    37  S.  W. 
[1897].                                                                     Rep.  950. 

3Cavazos    v.     Trevino,    6    Wall.     773  7  Kennedy  v.  Boykin  (S.   C.),  14  S.   E. 

[1867];    Campbell    v.    Carruth    (Fla.),   13  Rep.  809. 

So.   Rep.  432;    Hoffman    v.    Port    Huron  8  Branch    v.    Simons   (Tex.),  48   S.  W. 

(Mich.),  60  N.  W.  Rep.  831.  Rep.  40. 

4  People  i>.  Jones,  112  N.  Y.  597  [1889].  9Heyer  v.  Lee,  40  Mich.  353  [1879]. 

5  Doe  v.  Vallejo,  29  Cal.  386;  Cochran 


§  59a  OPERATIONS  PRELIMINARY    TO    CONSTRUCTION.  408 

greater  than  what  might  reasonably  be  expected  from  the  variation  of  instru- 
ments and  similar  causes. 1 

Where  one  who  buys  a  piece  of  land  at  a  price  per  square  foot,  paying  for 
a  certain  number  of  feet,  represented  by  a  plan  having  metes  and  bounds  and 
dimensions,  and  the  number  of  square  feet  of  the  lot  is  considerably  less  than 
what  he  has  paid  for,  he  may  recover  back  the  amount  paid  for  it  in  excess 
of  the  actual  area.  This  was  so  held  where  the  mistake  was  not  discovered 
until  six  months  after  the  sale,  the  purchaser  not  having  been  guilty  of  laches.2 
If  the  buyer  had  the  means  of  ascertaining  the  quantity  of  the  land  bought 
and  did  not  do  so,  it  seems  that  equity  will  afford  him  no  relief  on  the  ground 
that  the  seller  misrepresented  the  quantity.3 

Where  an  qwner  of  property  innocently  but  incorrectly  states  the  quantity 
of  land  contained  in  his  farm,  and  a  purchaser,  in  reliance  upon  his  statement, 
enters  into  a  contract  and  takes  a  deed,  the  purchase-price  being  estimated  at 
a  price  per  acre,  and  where  it  is  subsequently  discovered  that  the  quantity 
stated  is  materially  less,  he  is  entitled  to  the  assistance  of  the  courts  to  correct 
the  mistake.  The  purchaser  is  not  deprived  of  his  remedy  by  the  addition  of 
the  words  "  more  or  less  "  to  the  statement  of  the  quantity  contained  in  the 
deed.  The  words  "more  or  less"  were  held  not  to  import  a  special  agree- 
ment that  the  purchaser  takes  the  risk  of  the  quantity,  nor  are  they  equivalent 
to  a  stipulation  that,  if  a  mistake  be  discovered,  there  shall  be  no  relief.4 

If  there  was  neither  fraud,  nor  mutual  mistakes,  nor  representations  as  to 
the  number  of  acres,  and  there  was  no  particular  purpose  mentioned  which 
required  that  the  contract  should  contain  a  certain  number  of  acres,  then  no 
allowance  can  be  made  tor  any  deficiency  in  the  acreage.5  If  the  intention 
of  the  parties  was  to  make  a  sale  of  a  quantity  of  land  specified,  and  the  price 
paid  was  computed  at  a  fixed  rate  on  the  quantity  named,  and  the  deed  was 
made  and  accepted  and  the  business  transacted  under  a  mutual  mistake  of 
fact,  and  there  is  nothing  in  the  terms  of  the  deed  which  manifests  an  inten- 
tion to  waive  or  change  the  original  terms  of  the  sale,  the  purchaser  may 
recover  for  a  deficiency  in  quantity. 6 

Some  courts  hold  that  considerable  variance  should  be  allowed  even  where 
it  results  from  mistake  only,  in  the  absence  of  fraud  or  deception.7  If  the 
contract  be  not  executed  and  there  be  actual  misrepresentation  as  to  the 
quantity  of  the  land,  even  though  not  fraudulent,  and  the  mistake  be  so 
essential  that  the  contract  would  not  otherwise  have  been  entered  into  had 
the  parties  known,  then  equity  will  grant  relief.  The  same  doctrine  has  been 
applied  to  executed  contracts.8  In  patents  for  land  granted  by  the  state 

^endleton  v.  Stuart   (Va.),   5  Call    i;  *  Paine  v.  Upton,  87  N.  Y.  327  [1882]. 

Caldwell  v.   Craig   (Va.),    21  Gratt.   137;  5  15  Amer.  &  Eng.  Ency.  Law  721. 

Jollife  v.  Hite  (Va.),  i  Call  301.  6  Paine  v.  Upton,  87  N.  Y.  327;  Tarbell 

aFarbell    v.    Bowman,    103    Mass.     341  v.    Bowman,    103    Mass.    341;    Miller    v. 

[1869].  Craig,  83  Ky.  623. 

8Bd.  of  Commrs.   v.  Younger,  29  Cal.  7  Hill  v.  Buckley,  17  Ves.  401. 

173  [1857].  8I5  Amer.   &   Eng.   Ency.  Law  721. 


409  CONFLICT  OF  CALLS  IN  DESCRIPTION.  §  5QO. 

there  is  an  undertaking  on  the  part  of  the  state  that  the  land  described  shall 
contain  the  number  of  acres  specified,  and  the  excess  or  deficiency  permitted 
by  the  use  of  the  words  "more  or  less  "  is  restricted  to  the  reasonable  amount 
due  to  small  errors  in  surveying  and  to  variations  in  instruments.  The 
remedy  for  a  deficiency  in  such  a  case  has  been  held  to  lie,  not  in  making  good 
the  pecuniary  loss,  but  in  the  addition  to  the  contract  patent  of  adjoining 
vacant  land  under  a  warrant  of  a  resurvey. 1 

If  it  be  clear  that  the  intention  was  to  convey  only  the  quantity 
mentioned,  then  the  conveyance  must  include  that  quantity  and  need  contain 
no  more.  Parol  evidence  may  be  allowed  to  show  that  the  sale  was  in  fact 
by  the  acre,  if  there  be  any  uncertainty  in  the  description  by  metes  and 
bounds.2 

If,  however,  the  intention  to  convey  a  particular  tract  or  a  particular 
quantity  is  clear  although  the  parties  have  given  an  incorrect  specific 
description  of  it,  the  tract  or  quantity  will  pass.3  A  call  for  a  lot  by  the 
name  or  number  which  it  bears  on  a  plat  of  the  land  was  held  to  prevail  over 
courses  and  distances,  and  ordinarily  over  calls  for  monuments,4  it  being 
evident  that  it  was  the  intention  to  convey  the  lot  by  the  plat.  A  party 
purchasing  lots  on  the  margin  of  a  town- site  purchases  only  the  land 
contained  within  said  lots,  and  cannot  recover  from  a  grantor  a  sufficient 
amount  of  land  owned  by  said  grantor  adjoining  said  lots  outside  the  limits 
of  said  town-site  to  make  up  a  deficiency  in  the  size  thereof.5 

Where,  however,  a  block  consisting  of  twenty-two  lots  had  been  purchased 
and  a  warranty  deed  received,  and  where,  at  the  time  of  the  purchase,  a  plat 
was  exhibited  to  the  purchaser  which  showed  that  the  lots  were  25  feet  wide 
by  100  feet  deep,  it  was  held  that  the  purchaser  had  a  cause  of  action  for 
damages  when  it  was  discovered  that  part  of  the  lots  were  only  60  feet  deep 
because  of  some  mistake  in  the  original  plat,  and  that  this  was  so  regardless  of 
whether  the  representations  were  made  knowingly  or  by  mistake.6  And  where 
a  tract  of  land  was  located  by  a  surveyor  and  the  corners  marked  by  stones, 
and  the  lines  by  furrows  plowed  to  and  from  the  corners,  and  the  owner  in 
offering  it  for  sale  stated  the  boundaries  as  they  had  been  thus  established, 
and  represented  to  the  purchaser  that  they  were  the  true  boundaries,  and  that 
the  tract  was  the  east  174  acres  of  survey  No.  2,  and  the  tract  was  conveyed 
and  described  as  the  "  east  174  acres  of  survey  No.  2,"  giving  no  field-notes, 
the  tract  as  marked  by  the  boundaries  overlapping  an  adjacent  survey  on  the 
south  some  72  varas,  this  fact  being  unknown  to  the  parties  at  the  time  of  the 

1  Hoffman  v.  Johnson  (Md.),    I  Bland  *  O'Herrin  v.  Brooks  (Miss.),  6  So.  Rep. 
Ch.  103.                                                                     844.     But  $ee   Thompson    v.    Ladd,     169 

2  Hodges  v.  Denny  (Ala.),  5  So.   Rep.       111.  73- 

492  [1889];  Doe  v.  Vallejo,  29  Cal.  386.  5  Clark  v.   Farnsworth  (Kan.),   53   Pac. 

3  Colter  v.   Mann,   18  Minn.  96;  Rioux  Rep.  93  [1898]:  Leon,   etc.,   Co.   v.   Dun- 
v.    Cormier    (Wis.),  44  N.   W.    Rep.  654;  lap  (Tex.),  23  S.  W.  Rep.  473. 
Richwine  v.  Jones  (Ind.),  39  N.  E.  Rep.  6SeaiSt/.  Stinson  (Wash.),  29  Pac.  Rep. 
460.  205. 


§  5  9 1  -          OPERA  TIONS  PRELIM  IN  A  RY    TO    CONS  TR  UCT20N.  4 1 0 

sale,  it  was  held  that  the  grantor's  warranty  applied  to  the  land  pointed  out 
by  him  at  the  time  of  the  sale,  though  the  description  in  his  deed  did  not 
include  the  strip  from  which  the  grantee  had  been  ejected.1 

591.  "  More  or  Less  " — Meaning  of  Words  when  Quantity  is  Stated.— 
The  cases  given  in  the  last  section  can  hardly  be  reconciled  with  a  large  num- 
ber, unless  it  be  on  the  ground  that  the  element  of  misrepresentation,  of  fraud, 
or  of   mutual  mistake  did  not  exist  in  the  cases  here  presented,  or  that  the 
purchaser  or  grantee  had  the  means  and  opportunity  to  determine  the  quan- 
tity and  did  not  take  pains  to  do  so.     These  cases  hold  that  the  use  of  the 
words  "  more  or  less  "  in  a  deed,  after  enumerating  the  number  of  acres  in  a 
tract  of  land,  implies  a  waiver,  on  the  part  of  the  buyer,  of  a  warranty  as  to 
the  specific  quantity  in  a  contract,  and  an  agreement  on  the  part  of  the  seller 
not  to  demand  more  than  the  fixed  price.      If,  on  the  one  hand,  there  should 
be  an  excess  or,  on  the  other,  a  deficiency  in  the  quantity  named,  it  is  under- 
stood that  both  parties  are  willing  to  abide  by  such  presumptive  or  probable 
evidence  of  the  quantity,  but  of  which  quantity  neither  pretends  to  have  an 
accurate  and  perfect  knowledge.     The  use  of  these  words  in  a  statement  of 
the  number  of  acres  makes  that  statement  descriptive  merely,  and  it  is  not 
of  the  essence  of  the  contract.2 

The  risk  as  to  the  quantity  of  land  described  is  mutual;  and  if  such 
quantity  exceed  or  be  less  than  that  named,  there  can  be  no  recovery  on  either 
side  for  the  excess  or  deficiency,  even  though  it  be  large.3 

Where  land  is  sold  by  the  acre  at  a  public  auction,  the  vendor  saying  that 
he  will  sell  it  as  a  specific  number  of  acres  more  or  less,  and  that  it  shall  be 
measured,  the  vendee  is  required  to  take  it  though  the  quantity  be  largely  in 
excess  of  that  specified  at  the  sale  and  in  the  public  advertisement.4 

The  addition  of  the  words  "  more  or  less  "  to  the  description  makes  a  sale 
of  land  one  in  gross,  and  not  by  the  acre,  even  where  the  amount  named  is 
an  exact  multiple  of  the  number  of  acres  named.  This  has  not  been  the 
universal  construction,  however,  for  the  courts  have  sometimes  held  that  the 
words  did  not  imply  a  special  agreement  that  the  purchaser  took  the  risk  of 
the  quantity,  being  held  to  cover  ^  only  a  reasonable  excess  or  deficiency  such 
as  might  be  caused  by  differences  in  surveys  or  variations  in  instruments,  or 
similar  reasonable  causes. 

592.  "  More  or  Less  "—Variation  in  Quantity  Stated  Permissible.— Some 
courts  have  taken  an  intermediate  position  and  have  held  that  a  reasonable 
variance  was  permissible.      As  instances  the  words  "  more  or  less  "  have  been 
held  in  the  different  states  to  cover  a  conveyance  of  real  estate  in  which  the 
amount  of  variation  was  as  follows:  In  Kentucky  an  excess  of  56  over  425, 

iMeade  v.  Tones  (Tex.),  35  S.  W.  Rep.  8  15  Amer.  &  Eng.  Ency.  Law  717- 

3I0.  *  Ashcorn  v.  Smith  (Penn.),  2  P.  &  W. 

2*15    Amer.    &    Eng.    Ency.    Law    717;  211.     And  see  Delaware  v.  Smith,  i  Del. 

Thayer  v.  Finton,   108  N.  Y.  394  [1888];  Ch.  I. 
Coleman  v.  M.  B.  Ins.  Co.,  94  N.  Y.  229. 


411  CONFLICT   OF  CALLS  IN  DESCRIPTION.  §  $93. 

or  of  283  over  2000  acres,  or  a  deficiency  of  n  under  98  acres  was  permitted; 
but  an  excess  of  33  over  72  acres,  or  a  deficiency  of  67  under  610  (in  the 
presence  of  fraud),  was  held  to  exceed  the  reasonable  limit  covered  by  the 
words  * '  more  or  less. ' ' 

In  New  York  the  courts  have  allowed  a  deficiency  of  10  in  96,  or  of  5823 
in  17,466,  or  of  5  in  75  feet;  but  the  reasonable  limit  was  held  to  have  been 
exceeded  when  the  deficiency  was  9  in  98,  1 6  in  222,  or  3  in  8  acres.  New 
Jersey  permitted  a  variation  of  3  in  39,  but  refused  to  recognize  a  variation 
of  20  in  135  when  there  was  a  mistake,  or  of  3  in  15  in  case  of  mistake. 

In  Maryland  the  words  "  more  or  less"  have  been  held  to  include  a 
deficiency  of  28  in  173,  55  in  998,  104  ki  482,  53  in  187,  14  in  100  acres; 
but  a  deficiency  of  22  acres  in  424  was  held  to  exceed  the  limit.  The  state 
of  Indiana  has  permitted  a  deficiency  of  54  'acres  in  451,  or  of  12  in  42,  but 
has  refused  to  include  in  the  expression  a  deficiency  of  7  in  320  (in  the  pres- 
ence of  fraud),  or  of  37  in  140  (in  the  presence  of  fraud). 

Massachusetts  has  upheld  a  conveyance  when  there  was  an  excess  of  3  in 
85  or  a  deficiency  of  50  in  220  acres,  and  Virginia  permitted  a  deficiency  of 
1 60  out  of  1 1 oo,  but  refused  to  permit  a  deficiency  of  115  in  552,  or  of  135 
in  900,  when  the  vendor  knew  of  the  deficiency. 

Alabama  has  permitted  the  words  to  include  a  deficiency  of  3 1  in  500,  but 
not  of  25  in  100  acres;  while  the  courts  of  Arkansas  granted  relief  for  a 
deficiency  of  84  in  1 80,  on  the  ground  of  gross  mistake. 

The  courts  of  Minnesota  allowed  a  deficiency  of  2.85  in  20  acres; 
Mississippi,  20  in  100  acres. 

Iowa  has  held  the  limit  to  be  unreasonable  when  the  deficiency  was  8  in 
30;  Texas,  115  in  500;  and  North  Carolina,  i  in  5.1 

It  has  been  held  that  such  excess  or  deficiency  ought  not  to  exceed  ten  or 
fifteen  per  cent.2  Another  case  held  that  twenty  per  cent  was  too  great.3 

593.  "  More  or  Less  "  when  Land  is  Described  by  Metes  and  Bounds. — 
When  the  boundaries  are  defined  by  metes  and  bounds  the  grant  will  not  be 
enlarged  by  the  words  "more  or  less."  It  is  neither  limited  nor  extended  by 
the  words,  which  are  supposed  to  have  been  used,  in  the  absence  of  positive 
knowledge  of  the  boundaries  or  of  the  acreage,  for  the  very  purpose  of  avoiding 
a  statement  which  should  be  conclusive  on  the  parties.4 

If,  in  a  contract  of  sale,  land  is  described  by  metes  and  bounds  or  by  the 
insertion  of  the  words  "  more  or  less  "  or  equivalent  words,  the  statement  of 
the  quantity  of  land,  if  found  to  exceed  or  be  less  than  the  amount  named, 
will  not  entitle  the  purchaser  or  the  seller  to  relief  when  it  is  discovered  that 
the  quantity  stated  is  not  correct,  unless  the  difference  be  so  great  as  to  raise 

1  See  15  Amer.  &  Eng.   Ency.  Law  719,  Eq.  376. 

and  many  cases  cited.  4  15  Amer.  &  Eng.  Ency.  Law  720.     See 

2Fannin  v.  Bellamy  (Ky.),  5  Bush  663.  Lobit  v.   McClave  (Tex.),  28  S.  W.  Rep. 

3  Gentry  v.   Hamilton  (N.  C.),  3  Ired.  726. 


§  595-          OPERATIONS   PRELIMINARY    TO    CONSTRUCTION.  412 

a  presumption  of  fraud  or  of  a  gross  mistake  in  some  matter  which  has  been 
made  the  essence  of  the  contract. 

595.  "More  or  Less"  Applied  to  Linear  Distances. — When  applied  to 
distances  the  words  "  more  or  less  "  have  the  same  significance.     A  distance 
designated  as  between  two  points  described  and  as  being  "350  feet  more  or 
less"  includes  all  between  the  points  or  monuments  named  though  it  be  more 
than  350  feet.1     The  words  "  a  little  more  or  less  "  seem  to  have  no  special 
significance  when  compared  with  "  more  or  less."  2 

596.  "More  or  Less"  in  Trade  or  Commerce. — In  the  sale  of  personal 
property    the    words    "more    or  less"    are   held  to  have  no    such  meaning 
ordinarily  as  in  the  sale  of  land.     Goods,  wares,  and  merchandise  are  usually 
sold   at  the  unit   weight  or  measure,   and   the  words  "more  or  less"   are 
inserted  in  order  to  cover  variations  of  estimate  due  to  differences  in  weight, 
errrors  in   counting,  and  diminution   by  shrinkage  and   other  similar  causes. 
Parol  evidence  will  not  be  admitted  to  show  that  the  parties  intended  to  buy 
or  to  sell  a  different  amount  from  that  stated  in  their  written  contract. 3 

597.  Excess   or    Deficiency  —  How   Distributed.  —  When    the    distance 
between  two  corners  is  in    excess  of  that  called  for  by  the  field-notes,  the 
boundary   should  be    determined   by  apportioning  such  excess  to  the  two 
surveys  whose  corners  are  found.4 

Where  the  description  of  land  in  a  deed  calls  for  a  legal  subdivision  of  a 
section  of  surveyed  land,  the  quarter-section  corners  being  lost,  and  the 
section  exceeding  640  acres  in  area,  the  division-lines  of  the  fractions  of  the 
section  are  determined  by  a  division  pro  rata  of  the  lines  of  the  section  as  they 
appear  upon  the  ground.5 

Where  one  purchases  from  the  state  the  east  half  of  a  certain  surveyed 
section,  and  another  purchases  the  west  half,  and  it  afterwards  appears  that 
all  of  the  east  half  except  67  acres  is  covered  by  a  prior  survey,  of  which  fact 
the  land  commissioner  has  no  knowledge,  and  all  parties  believe  each 
purchaser  has  a  full  half-section,  then  there  is  a  mutual  mistake,  and  the 
purchaser  whose  land  is  short  cannot  recover  any  portion  to  make  up  the 
deficiency  in  his  east  half.6 

The  regulations  of  the  United  States  General  Land  Office  require  that 
where  the  quarter  section  corners  of  exterior  sections  bounded  on  the  north 
or  west  by  township  or  range  lines  cannot- be  found,  the  interior  corner  of  any 
such  section  shall  first  be  found  and  established ;  from  which  exactly  forty 
chains  shall  be  measured  along  the  line  in  the  direction  of  the  township  or 
range  line,  and  at  that  point  the  quarter-section  corner  is  to  be  placed:  this 

1Gonzales  v.  Leon,  31  Cal.  98  [1866].  *Knippa  v.   Umlang  (Tex.),  27  S.  W. 

*  United  States    v.    Fossat   (U.    S.),    2  Rep.  915. 

How.  413;  United  States  v.   Estudillo,  I  5  Eshleman   v.    Malter  (Cal.),   35    Pac. 

Hoffm.   L.  Cas.   204;    15    Amer.   &  Eng.  Rep.  860. 

Ency.  Law  722.  6  Creech  v.  Davidson  (Tex.),  238.   W. 

3 15  Amer.  &  Eng. Ency.  Law  722.  Rep.  995. 


413  CONFLICT   OF  CALLS   IN  DESCRIPTION.  §  $98. 

always  leaves  the  excess  or  deficiency  to  the  quarter  directly  on  the  township 
or  range  line.  And  it  makes  no  difference  whether  the  fraction  contains 
more  or  less  than  the  number  of  acres  shown  by  the  government  field-notes. 
Where  the  statute  of  a  state  conflicts  with  the  regulations  of  the  United  States 
Land  Office  on  this  subject,  the  latter  must  govern.  Where  the  original 
quarter-section  corners  of  interior  sections  cannot  be  found  or  proved,  they 
are  to  be  established  at  a  point  equidistant  from  the  corresponding  corners  of 
the  section.1 

Where  two  surveys  made  by  the  same  surveyor  at  about  the  same  time  call 
for  a  common  division-line,  and  are  mapped  as  adjoining,  the  fact  that  an 
excess  exists  in  the  amount  of  land  included  in  one  or  both  along  the  line  of 
junction  is  not  sufficient  reason  for  separating  them  in  favor  of  one  subse- 
quently locating  on  such  excess; 2  but  if  a  tract  of  land  be  described  by  metes 
and  bounds,  the  monuments  described  or  designated,  or  the  lines  bounding 
the"  tract  located  by  a  surveyor,  and  the  boundaries  or  survey  so  located  or 
designated  as  to  leave  a  gore  or  strip  of  land  intervening  between  the  tract 
described  and  the  adjoining  estate,  the  limits  of  the  tract  conveyed  will  be 
confined  to  the  monuments  and  lines  described  or  located,  and  the  gore  or 
strip  between  the  estates  will  not  pass  by  the  deed.3 

A  custom  of  surveyors  of  land  to  overrun  the  exact  measures  is  admissible 
to  show  that  the  boundaries  of  an  ancient  grant  described  by  courses  and  dis- 
tances exceeded  the  distances  given  in  the  deed.4  But  the  proof  of  such  a 
custom  must  be  certain  and  undoubted,5 

598.  Description  by  Lot  Number  of  Map  or  Plan  Referred  to.* — Boun- 
daries of  land  sold  by  plan  with  a  brief  description  or  memorandum,  such  as  is 
used  in  real-estate  offices,  are  generally  controlled  by  the  plan,  and  by  monu- 
ments and  lines  marked  upon  it,  even  though  the  area  be  given.  In  a  con- 
veyance, a  lot  was  described  by  reference  to  a  schedule  annexed,  and  the 
schedule  consisted  of  four  columns:  in  the  first  was  the  number  of  the  lot  on 
the  plan  of  the  estate,  the  number  being  "153^";  in  the  second  column, 
headed  "Description  of  premises,"  the  lot  was  described  as  "a  small  piece 
marked  on  plan,"  in  the  third  column  noted  as  being  "occupied  by  J.  E.," 
and  in  the  fourth  column  as  containing  "34  perches."  At  the  time  of 
making  the  contract  of  purchase  a  line  had  been  drawn  upon  a  plan,  which 
was  to  scale,  dividing  the  lot  "  I53<£ "  from  the  remainder  of  a  larger  lot. 

The  quantity  called  for  in  the  schedule,  and  that  included  by  the  line  so 
drawn  upon  the  plan,  by  scale,  and  the  area  found  by  actual  measurement  of 

knight  v.  Elliott,  57  Mo.  317  [1874].          E.  Rep.  431.     But  see  Titus  v.  Morse,  40 

2  Stanus  v.  Smith  (Tex.),  30  S.  W.  Rep.       Me.  348  [1855], 

262.  *  Owen      v,      Bartholomew,      9     Pick. 

3  Frost     v.    Spaulding,     19     Pick.    445       (Mass.)  520  [1830]. 

[1837];  Reed  v.  Phillips  (Tex.),  338.  W.  6Lawson  on   Usage  35;  Wait's  Engiru 

Fep.  986;  Mendel  v.  Whiting  (111.),  31  N.       and  Arch.  Jurisp.,  §  609. 

*  See  Sees.  613-618,  infra. 


'§  599-          OPERATIONS  PRELIMINARY    TO    CONSTRUCTION.  414 

the  land  itself,  were  found  to  differ.  The  court  held  that  the  statement  that 
the  land  conveyed  contained  34  perches  was  merely  a  false  demonstration, 
that  the  prior  description  was  sufficient  to  convey  it,  and  that  the  deed  passed 
only  the  portion  actually  marked  off  and  shown  on  the  plan  as  measured  by 
scale. 

Where  the  boundary-lines  of  lots  conveyed  by  lot-numbers  are  incorrect 
or  are  wrongfully  stated  as  to  length,  it  will  not  prevent  the  whole  of  the  lot 
as  shown  upon  the  plat  from  passing;  and  if  there  is  a  shortage  on  the  plat 
in  which  the  owner  intended  to  convey  all  his  property,  such  shortage  will  be 
divided  as  nearly  as  possible  pro  rata  between  the  grantees  of  the  respective 
lots.1 

Where  the  monuments  of  the  original  survey  of  a  town-site  have  been 
•destroyed,  the  descriptive  words  in  a  plat  of  the  town  site  are  controlling  as 
to  the  location  of  the  town-site.2  The  map  or  plan  referred  to  in  a  descrip- 
tion stands  upon  the  same  footing  as  a  monument,  and  if  the  map  be  a  public 
record  it  is  of  even  higher  authority.3 

If  there  be  two  descriptions  of  the  land  conveyed  which  do  not  coincide 
;and  are  not  of  equal  weight,  the  grantee  is  entitled  to  hold  by  that  which  is 
most  beneficial  to  him.4 

Where  a  fractional  lot  is  conveyed,  the  grantee  is  bound  by  the  distances 
given,  even  if  reference  is  made  to  an  official  map. 5 

599.  Monuments  Designated  on  Map  against  Monuments  on  Land. — 
That  which  is  most  certain  should  control.  A  map  or  plat  of  an  addition 
implies  a  previous  survey  and  marking  upon  the  ground  so  as  to  render 
admissible  evidence  of  the  existence  and  location  of  the  stakes  marking  such 
.survey.6 

Where  reference  had  been  made  to  a  map  and  also  to  a  deed,  which  latter 
did  not  fix  any  monument  at  the  starting-point  which  could  be  determined 
with  accuracy,  and  where  the  line  was  described  as  terminating  at  "the  base 
of  the  mountain  "  and  then  turning  down  at  right  angles  and  following  down 
the  base  of  the  mountain,  and  the  character  of  the  country  was  such  that  wit- 
nesses might  differ  as  to  the  location  of  these  lines,  but  the  map  referred  to 
represented  all  the  natural  and  artificial  objects  found  upon  the  land,  such  as 
streams,  buildings,  and  roads,  and  there  was  conflict  between  the  description 
as  found  in  the  deed  and  the  boundaries  laid  down  upon  the  map,  it  was  held 

1  C.  S.  &  C.  R.  R.  Co.  v.  Tuttle,  7  Ohio  *  Melvin  v.  Proprietors,  etc.,  5  Met.  15 ; 

Dec.  63.  Estey  v.  Baker,   50  Me.   325,   525;  Vance 

2Sperry  v.  Wesco  (Oreg.),  38  Pac.  Rep.  v.  Fore,  24  Cal.  443;  Lunt  v.  Holland.  14 

623.  Mass.   149;   Glover  v.  Shields,  32  Barb. 

3  Parks  v.  Loomis,  6  Gray  467;  Lunt  v.  380;  Willard  on  Real  Estate,  403;  3  Wash- 
Holland,  14  Mass.   149;  Vance  v.  Fore,  24  burn's    Real    Prop.    333,    343;    Colter    v. 
Cal.   443;  Buchanan   v.    Roy's   Lessee,   2  Mann,  18  Minn.  96  [1871]. 
Ohio    St.   263;    Magoun    v.    Lapham,    21  5  Hostetter    v.    Los  Angeles  Terminal 
Pick.    135;  Mclver  v.   Walker,  9  Cranch  Ry.  Co.  (Cal.),  41  Pac.  Rep.  330. 
173;    Fuller   v.  Dauphin   (111.),   16  N.   E.  '6  Burke    v.  McCowen    (Cal.),   47    Pac. 
Rep.  917  [1888].  Rep.  367. 


415  CONFLICT   OF  CALLS  IN  DESCRIPTION.  §  $99. 

that  the  description  presented  by  the  map  must  be  adopted  as  the  one  most 
stable  and  the  least  likely  to  be  affected  by  mistakes.1 

Maps  equally  with  descriptions,  in  a  deed,  must  be  interpreted  with  regard 
to  the  monuments  found  on  the  ground.  Where  the  lines  of  a  street  on  a 
map  referred  to  in  a  deed  differ  from  those  laid  out  by  the  city  before  the 
platting  of  the  land,  the  latter  prevail.2  The  boundaries  are  determined  by 
lines  as  actually  run  on  the  ground  as  shown  by  the  surveyor's  stakes,  rather 
than  the  lot-lines  as  shown  by  the  plat.3 

A  survey  once  placed  upon  the  face  of  the  earth  must  control  a  plan  that 
is  made  from  it,  although  the  plan,  when  placed  upon  the  earth,  would  locate 
the  line  elsewhere,4  even  though  the  grantee  has  not  seen  the  line  on  the 
ground.5  But  if  the  boundary  be  between  the  grantor  and  the  grantee,  and 
the  monuments  are  hidden  and  private  and  the  grantee  had  no  notice  of 
them,  then  the  courses  and  distances  named  in  a  plat  to  which  a  deed  refers 
must  govern  rather  than  the  line  as  actually  located  upon  the  land.6 

A  description  of  a  deed  conveying  a  lot  and  house  thereon  was  referred  to 
by  lot  and  block  numbers  of  a  map  of  record.  By  the  map  the  lot  was  only 
twenty-three  feet  four  inches  wide,  and  the  house,  erected  long  before  the  sale, 
was  twenty-five  feet  wide  and  lapped  upon  the  adjoining  lot.  The  reference 
to  the  map  was  held  so  important  that  it  was  permitted  to  control  in  spite  of 
the  fact  that  the  house  itself  constituted  a  monument  in  the  field.  The 
owner  of  the  adjoining  lot  having  succeeded  in  an  ejectment  suit,  the  courts 
refused  an  injunction  restraining  execution,  and  held  that  the  house-owner  had 
no  equity  although  it  was  alleged  that  his  grantor,  who  had  formerly  owned 
both  lots,  had  represented  that  he  was  the  owner  of  the  house  and  lot,  but 
had  failed  to  state  that  he  was  at  the  time  the  owner  of  the  next  lot.  It  was 
held  that  the  house-owner  was  put  upon  inquiry  as  to  the  width  of  his  house- 
lot  by  the  reference  to  the  map  in  his  deed.7 

In  like  manner  in  the  following  description,  a  parcel  of  land  was  described 
as  follows:  "  Commencing  at  a  point  on  J.  St.  100  feet  from  the  corner  of 
J.  and  F.  Sts.,  thence  S.  along  J.  St.  50  feet,  thence  at  right  angles  eastward 
119  feet,  thence  northward  50  feet,  thence  westward  toward  place  of  beginning 
119  feet,  the  same  being  the  south  \  of  lots  6  and  7  in  block  16  of  the  town 
of  St.  P.  proper/'  The  town  plat  showed  the  line  on  J.  St.  to  be  150  feet, 
but  in  fact  it  was  only  145^  feet.  One-third  of  the  lots  would  give  48^  feet 
on  J.  St.,  while  according  to  the  survey  100  feet  south  of  the  corner  would 

1  Vance    v.    Fore,    24    Cal.    436    [1864];  W.  Rep.   702.     Semble,    Butler    v.  Vicks- 

Jeffries  v.  E.  Omaha  Land  Co.,  10  Sup.  bur?  (Miss.),  17  So.  Rep.  605. 

Ct.  Rep.  518.  5  Smith  v.  Boone  (Tex.),  19  S.W.  Rep. 

Hastings  v.  McDonough  (App.  Div.),  702. 

43  N.  Y.  Supp.  628.  6Whhehead  v.  Atchison   (Mo.),  37  S. 

City  of  Decatur  v,  Niedermeyer,  16*8  W.  Rep.  928. 

HI.  68.  i  Anglecey   v.    Colgen   (N.  J.),    9  AtL 

*  Stetson  v.  Adams  (Me.),  30  Atl.    Rep.  Rep.  105  [1887]. 
575  [1898];  Smith    v.   Boone  (Tex  ),  19  S- 


§600.          OPERATIONS  PRELIMINARY   TO    CONSTRUCTION.  416 

give  but  45 1  feet  on  J.  St.    It  was  held  that  the  south  \  of  the  said  lots  6  and 
7  passed  by  the  deed. 1 

600.  Conflict  Between  Plat  and  Field-notes  of  Public  Land.— When  the 
plat  and  the  field-notes  of  the  original  survey  of  public  land  do  not  agree,  the 
former  must  control  since  it  represents  the  lines  and  corners  as  fixed  by  the 
surveyor-general  and  by  which  the  land  was  sold.2  In  the  absence  of  original 
monuments  the  plat  will  control.3 

The  return  of  a  tract  of  land  from  the  board  of  proprietors  prevails  over  a 
map  on  file  in  the  surveyor's  office  attached  to  the  original  survey,  in  case  of 
an  inconsistency  between  the  two  in  defining  the  boundaries  of  the  tract.4 

Where  land  is  bought  at  public  auction,  the  purchaser  having  before  him 
an  official  map  showing  the  size  of  each  parcel  sold,  and  where  the  deed 
describes  the  land  as  a  certain  numbered  lot  shown  on  the  map,  and  also  by 
metes  and  bounds,  and  the  descriptions  do  not  agree  as  to  the  size  of  the  lot, 
the  dimensions  on  the  map  control.5 

Where  officers  of  a  corporation  were  authorized  to  convey  "the  W.  -J-  of  the 
E.  -J-  of  lots  10  and  n"  and  the  officers,  after  so  describing  the  land,  added 
without  authority  a  specific  description  by  metes  and  bounds,  which  they 
supposed  covered  the  same  property,  it  was  held  that  the  first  description 
prevailed.6 

If  land  be  described  by  giving  the  number  of  the  certificate  of  survey  and 
not  by  metes  and  bounds,  such  number  becomes  an  essential  part  of  the 
description.7  Where  a  surveyor  establishes  two  initial  points  on  the  ground 
itself,  and  from  these  the  remaining  surveys  are  plotted  in  on  a  map,  and  in 
the  plot  calls  are  made  for  a  river,  the  true  course  of  which  the  surveyor  ha& 
mistaken,  the  surveys  must  be  run  out  as  plotted,  the  calls  for  the  river  yield- 
ing to  course  and  distance.8 

Where  lots  are  conveyed  by  numbers  according  to  a  plat  and  also  as  one 
piece  of  land  bounded  by  "the  Philadelphia  and  Morristown  Railroad," 
which  appeared  on  the  said  plan  of  streets  as  a  platted  street  120  feet  wide, 
the  center  of  which  was  a  railroad  right  of  way  66  feet  wide,  with  a  strip  27 
feet  wide  on  each  side  thereof  intended  by  the  city  as  a  public  street,  it  was 
held  that  the  grantee's  title  as  against  the  grantor  extended  to  the  middle  of 
the  street,  subject  to  the  existing  rights  of  the  railroad,  the  city,  and  other 
owners  of  lots.9 

1  Colter  v.  Mann,  18  Minn.  96  [1871].  So.     Rep.    844.     See     Chaflin    v.    Gantz 

2Beaty   v.   Robertson  (Ind.),  30  N.    E.  (Sup.),  39  N.  Y.  Supp.  712. 

Rep.  706  [1892],  many  cases  cited ;  Elliott  6  Novotny   v.   Danforth    (S.   D.),  68   N. 

v.    Gibson    (Ky.),    29   S.   W.    Rep.    620;  W.  Rep.  749-     But    see  Waldin   v.   Smith 

Turner  v.  Union  Pac.  Ry.  Co.  (Mo.),  20  (la.),  39  N.  W.  Rep.  82  [1888]. 

S.  W.  Rep.  673.  7  Rogers  v.  Concho  C.  Co.   (Tex.),  38 

8  Lampe    v.     Kennedy,    49    Wis.     601  S.  W.  Rep.  656. 

[1880].  8New  York    &  T.  Land  Co.  v.  Thom- 

*  Allaire   v.    Ketcham    (N.   J.    Ch.),  35  son  (Tex.).  17  S.  W.  Rep.  920. 

Atl.  Rep.  900.  9Dobson   v.  Hohenadel  (Pa.  Sup.),  23 

5Masterson  v.  Munro   (Cat.),    38  Pac.  Atl.  Rep.  1128. 
Rep.  1106;  O'Herrin  v.  Brooks  (Miss.),  6 


417  CONFLICT  OF  CALLS  IN  DESCRIPTION.  §603. 

601.  Older  and  Later  Surveys  and  Grants — Their  Relative  Value. — In 
case  of  conflict  an  older  grant  will  prevail  over  a  later  grant  founded  on  an 
older  entry;  the  entry  not  being  in  evidence  and  nothing  else  appearing.1 
Where  a  junior  suney  was  located  between  the  lines  of  two  older  surveys, — 
east  of  one  and  west  of  another, — the  older  surveys  must  be  determined  by 
their  field-notes,  and,  when  ascertained,  they  fix  the  location  and  quantity  of 
the  junior  dependent  survey.2  When  the  surveys  overlap  one  another,  the 
one  first  made  will  have  the  priority,  especially  when  the  second  survey  is 
bounded  by  express  reference  to  the  first.  Calls  of  a  second  sufrvey  conflicting 
with  monuments  and  calls  of  a  first  survey  must  yield  thereto.3 

In  ascertaining  boundaries  from  title-papers,  he  who  has  the  oldest  title  is 
entitled  to  take  his  courses  and  distances,  go  where  they  may.4  A  call  for 
the  lines  of  the  older  survey,  as  that  of  an  adjoiner,  will  control  a  call  for  a 
distance.5 

Parol  evidence  is  not  competent  to  prove  the  existence  of  older  and 
superior  titles  to  land,  since  the  grants  and  titles  themselves  are  the  best 
evidence.6  Proof  of  a  record  of  a  prior  location,  and  the  marking  of  it  on 
the  ground,  will  not  defeat  a  subsequent  location,  in  the  absence  of  proof  of 
a  discovery  by  the  prior  locators.  The  record  and  the  marking  are  not  suffi- 
cient to  authorize  the  court  to  presume  a  discovery.7 

There  is  no  rule  that  if  clauses  in  a  description  of  land  are  repugnant, 
the  first  necessarily  prevails  over  the  last.8 

603.  Azimuths,  Bearings,  and  Points  of  Compass — Meaning  of  Words.— 
''North"  and  "northerly"  in  a  description  in  a  deed  have  been  held  not  to 
be  synonymous.9  The  words  "  northerly  and  easterly"  maybe  held  more 
comprehensive  in  significance  than  "  north  and  east,"  depending  largely  for 
their  meaning  upon  the  circumstances  to  which  they  are  applied.  If  there  be 
no  object  to  which  the  course  is  directed,  they  must,  at  least  in  a  description 
in  the  deed,  be  taken  to  indicate  a  direction  due  north  or  east;  but  when  there 
are  monuments  to  which  they  are  applicable  they  may  have  their  ordinary 
meaning  in  full  force  and  yet  the  line  or  course  may  incline  either  way  to  any 
distance,  so  long  as  it  tends  toward  the  north  and  east;  and  in  connection 
with  these  facts  the  words  retain  a  definite  and  unmistakable  meaning.  The 
course  will  maintain  its  characteristic  as  northerly  or  easterly  or  both. 10  If 
there  be.  no  object  mentioned  to  incline  the  course  toward  "east"  or 

1  Hitchcock      v.      So.     I.     &  T.     Co.           6Woodbury  v.  Evans  (N.  C.),  30  S.  E- 
(Tenn.),  38  S.  W.  Rep.  588.  Rep.  2  [1898]. 

2  Bennett  v.  Latham  (Tex.),  45    S.  W;           'Smith  v.  Newell  (U.  S.),  86  Fed.  Rep. 
Rep.  934  [1898].  56  [1898]. 

Van  Amburgh   v.  Hitt  (Mo.  Sup.),  22  8Rathbun  v.  Geer,  86  Conn.  421. 

S.  W.  Rep.  636.    But  see  Snyderr/.  Morris  9  Garvin  v.  Dean,  115  Mass.  577-  How- 

(Tex.)   38  S.  W.  Rep.  219.  ard  v.  College,  116  Mass.  117. 

•Guillen  v.   Belts  (Del.),  39   Atl.  Rep.  10  Foster  v.  Foss,  77  Me.  280;  Irwin  v. 

595    [1897]-  Towne,  42  Cal.  329;  Abbey  v.  McPher- 

Worsham  v.  Morgan  (Tex.),  28  S.  W.  son  (Kan.),  41  Pac.  Rep.  978. 
Rep.  918. 


§  604.          OPERATIONS  PRELIMINARY   TO    CONSTRUCTION.  418 

"  west, "  the  word  "  northerly  "  is  considered  to  mean  due  north.1  "  North  " 
and  "northward"  have  been  held  to  mean  due  north.2  "Northwardly," 
"  westwardly,"  etc.,  in  a  description  are  held  to  mean  due  north,  due  west, 
etc.3 

In  naming  one  of  the  courses  of  a  boundary  of  a  county  in  the  state  of 
Ohio  the  words  "  thence  north  to  the  Great  Miami  "  were  held  to  refer  to  the 
originally  surveyed  section-line,  although  not  running  a  true  course.4  The 
words  "  due  west,"  "  due  east,"  etc.,  are  held  to  mean  exactly* west,  exactly 
east,  etc.,  and  to  apply  with  equal  propriety  to  those  points  whether  the 
magnetic  or  the  sidereal  meridian  is  referred  to.5 

It  frequently  happens  in  descriptions  that  mistakes  are  made  and  the  word 
"  north  "  is  used  for  the  word  "  south."  In  such  case  the  deed  is  not  void 
for  uncertainty  if  the  intention  of  the  parties  is  plain,  as  where  the  description 
reads,  * '  south  to  the  place  of  beginning, ' '  and  it  is  necessary  to  go  north  to 
reach  the  place  of  beginning.6 

Where  boundaries  called  for  as  the  north,  south,  east,  and  west  bounda- 
ries are  taken  as  the  northeast,  southeast,  etc.,  boundaries,  and  describe  a 
tract  of  five  times  the  area  the  deed  calls  for,  such  deed  will  not  be  held  void 
for  uncertainty  as  a  question  of  law,  but  the  identity  of  the  land  is  a  mixed 
question  of  law  and  fact  for  the  jury.7 

604.  Meridians,  True  or  Magnetic. — Whether  the  line  is  to  be  run  by  the 
magnetic  or  the  sidereal  meridian  must  be  determined  by  the  circumstances 
of  each  case.  In  some  states  it  may  be  determined  by  the  statute  or  fprmer 
decisions  of  the  courts.  In  New  Hampshire  it  was  held  to  be  part  of  the 
common  law  that  when  the  meridian  was  not  specially  designated  as  the 
sidereal  meridian,  the  courses  in  deeds  of  private  land  are  to  be  run  according 
to  the  magnetic  meridian  [of  the  year  when  the  original  survey  was  made].8 

When  the  surveys  of  the  state  have  been  made  by  different  meridians,  some 
by  the  true  and  others  by  the  magnetic  meridian,  a  call  "due  west,"  made 
in  a  contract  for  the  subdivision  of  the  original  section,  has  not  a  determinate 
meaning  even  by  judicial  determination.  If  the  original  survey  were  made 
by  the  magnetic  meridian  and  subdivisions  have  been  made,  there  arises  a 
strong  and  conclusive  presumption  that  such  subdivision-lines  were  intended 
to  be  run  by  the  magnetic  meridian;  and  even  when  the  original  survey  was 
made  according  to  the  true  meridian  in  a  subdivision,  unless  so  made,  in 
reference  to  the  original  courses,  as  to  manifest  an  intention  to  be  controlled 

1  Brandt    v.  Ogden    (N.  Y.),    I   Johns.  4  Commrs.  of  Warren  Co.  v.  Commrs. 
I56  of  Butler  Co.,  4  Ohio  N.  P.  349  [1897]. 

2  Jackson  v.  Reeves,  3  N.  Y.  293;  Cur-  5  Wells  v.  Co. ,  47  N.  H.  235  [1866]. 
rler  v.  Nelson  (CaL),   31   Pac.   Rep.  531;  6  Marsh  v.   Ne-Ha-Sa-Ne    Park   Assn. 
Reed    v.    Knight,   87    Me.    181.     But   see  (Sup.),  42  N.  Y.  Supp.  996.     See  Dunlop 
Weare  v.  Weare    59  N.  H.  293.  v.  Kennedy  (CaL),  34  Pac.  Rep.  92. 

8  Seaman    v.     Hogeboom    (N.  Y.),     21  7  Dwyre  v.  Speer  (Tex.),  27  S.  W.  Rep. 

Barb.  298,  404;  Craig  v.  Hawkins  (Ky.),  585. 

I  Bibb.  53;  Pratt  */.  Woodward,  32  Cal.  8  Wells    v.   Co.,   47    N.  H.    235   [1866], 

227.  and  cases  cited. 


419  CONFLICT  OF  CALLS  IN  DESCRIPTION.  §  605. 

by  the  original  courses,  they  would  in  general  be  run  by  the  magnetic 
meridian,  as  that  is  the  general  usage  in  running  lines.  The  question  is  in 
general  a  mixed  one  of  law  and  fact  to  be  determined  by  the  terms  of  the  calls 
and  the  extraneous  circumstances  attending  each  case.1 

605.  Measurements  to  and  from  Objects  Described  as  Monuments, — In 
general,  when  premises  are  bounded  on  or  by  a  monument,  whether  a  stream, 
roadway,  ditch,  wall,  fence,  rock,  or  stake,  the  description  is  construed  as 
meaning  to  the  middle  or  center  of  that  monument,2  and  therefore  it  would 
seem  that,  in  general,  distances  should  be  measured  to  the  center  or  middle 
of  such  boundaries.  This,  however,  is  not  the  universal  practice,  and  little 
definite  law  can  be  cited  to  govern  the  cases. 

The  acknowledged  practice  of  surveyors,  the  local  custom  and  usage  of 
the  place,  the  particular  circumstances  surrounding  each  survey,  the  applica- 
tion and  the  adjustment  of  the  description  of  the  land  by  courses  and  distances 
to  the  property,  may  each  and  all  have  weight  in  determining  how  to  apply 
such  distances  to  the  monuments  described. 

By  the  law  of  property,  ownership  is  that  which  gives  one  the  exclusive 
and  free  enjoyment  of  his  possessions.  Therefore  if  a  man  would  erect  a  wall 
or  fence,  or  dig  a  ditch,  or  set  a  hedge,  he  must  confine  his  operations  to  his 
own  land  or  possessions.  He  cannot  encumber  his  neighbor's  land  with  his 
fence  any  more  than  with  his  building.  If,  however,  he  has  built  a  fence  or 
dug  a  ditch  upon  his  own  land  and  then  sells  or  grants  away  a  part  of  it, 
bounding  it  on  or  by  the  fence  or  ditch  without  reservation,  the  center  line 
will  be  the  boundary.  The  actual  point  measured  to,  as  recorded  or  proved, 
will  govern. 

In  some  localities  it  has  become  the  custom  for  property  owners  to  set  the 
center  of  the  posts  of  a  fence  upon  the  dividing-line,  to  which  place,  therefore, 
surveyors  should  conform  in  their  measurements.  In  others  the  posts  are 
kept  wholly  upon  the  soil  of  the  builder,  and  the  face  of  the  rails  to  which  the 
pickets  or  boards  are  nailed  is  considered  the  line;  or  if  the  boards  are  nailed 
directly  to  the  posts,  then  the  face  of  the  posts  to  which  the  boards  are  fastened 
is  taken  as  the  line.  In  cities  it  is  the  usual  custom  for  the  one  who  builds 
and  maintains  the  fence  to  keep  the  posts  upon  his  .own  land.  This  is 
because  every  available  inch  or  fraction  of  land  is  valuable  and  may  be  utilized 
for  building.  Fences  erected  upon  a  street-line  are  generally  kept  entirely 
within  the  lot.  The  extreme  outside  face  of  the  wall  or  fence  is  taken  as  the 
line.  This  is  because  cities  are  very  particular  to  prevent  any  encroachment 
upon  the  sidewalks,  and  parties  who  build  out  over  or  upon  them  may  be 
required  to  take  down  and  rebuild  if  they  project  their  fences  or  buildings 
into  the  street. 

1  McKinney  v.   McKinney,  8  Ohio  St.       Fomby  (Ala.),  22  So.  Rep.  910  [1897]. 
423  [1858];  Wells    v.  Co..,  47   N.  H.    235  2  Starr   v.   Child,    20  Wend.    149,    ana 

[1866],  and  many  cases  cited;  Taylor   v.       cases  cited. 


§  606.          OPERATIONS  PRELIMINARY   TO    CONSTRUCTION.  42O 

In  walls  and  blocks  in  cities,  the  water-table  or  underpinning  courses 
are  generally  taken  as  the  limit  of  the  street-line.  This  will  be  a  matter  of 
custom  or  ordinance  in  different  cities,  and  may  be  wholly  at  variance.  A 
newcomer  in  a  community  should  inform  himself  as  to  the  usages  in  vogue 
at  the  city  engineer's  office  or  from  the  established  engineers  of  the  place. 

In  the  country,  in  farm  surveying,  where  land  is  cheaper,  the  fences  are 
frequently  placed  upon  the  line,  so  that  its  middle  line  is  the  boundary-line, 
and  the  fence  is  equally  upon  both  property  owners. 

The  general  rule  as  to  monuments  undoubtedly  is  that  the  center  of  such 
monument,  stake,  stone,  tree,  rock,  etc.,  is  intended  when  lands  are  so  de- 
fined. Even  when  highways  and  streams  are  referred  to  in  deeds  as  the  limits 
of  the  grant  or  conveyance,  the  middle  is  presumed  to  be  the  limit  unless  the 
contrary  be  clearly  expressed.  The  real  boundary,  then,  is  the  belt  of  land 
extending  along  the  highway  or  stream  between  the  margin  and  the  center.1 

Measurements  from  structures  when  designated  in  a  description  must  be 
made  in  accordance  with  the  intention  of  the  parties,  if  that  can  be  ascer- 
tained. Circumstances  and  conditions  attending  each  case  will  lend  their 
weight  in  determining  that  intention,  as  will  the  construction  of  the  same 
language  adopted  in  other  and  earlier  cases  decided. 

A  line  described  as  "four  feet  north  from  the  northerly  side  "  of  a  build- 
ing was  held  to  mean  four  feet  from  the  edge  of  the  eaves,2  but  "eight  feet 
four  inches  from  the  south  side  of  a  building  was  held  to  be  measured  from 
the  corner  board  and  not  from  the  outer  edge  of  the  eaves. 3 

Where  a  boundary-line  was  described  as  "commencing  twelve  and  one- 
half  feet  east  of  [the  grantee's]  house,"  it  was  measured  from  the  foundation 
of  the  house.4 

Where,  in  an  action  to  determine  the  true  boundary-line  between  two  city 
lots  which  are  entirely  covered  by  buildings  erected  many  years  ago,  the  court 
adopts  a  crack  or  seam  between  the  buildings  as  the  true  line,  the  finding  will 
not  be  disturbed.5 

606.  Measurements  "  to  or  along  "  a  Road, — Whether  measurements  to  a 
road  or  way  are  to  the  center  or  to  the  nearer  side  is  a  question  that  is  not 
settled,  but  depends  upon  the  particular  circumstances  of  each  case. 
Numerous  cases  have  come  before  the  courts,  but  no  definite  or  satisfactory 
rule  has  yet  been  established.  It  was  intimated  in  a  recent  Massachusetts 
case  that  where  the  boundary  is  a  stream  or  way  there  was  a  reasonable  pre- 
sumption that  measurements  were  made  from  the  bank  of  the  stream  or  from 
the  side  of  the  way,  and  that  such  a  rule  of  presumption  was  well  established 

1  Redfield,   J.,   in   Buck  v.  Squires,   22  Co.,  51  Me.  413  [1864].     And  see  Wise  v. 
Vt.  484.  Burton  (Cal.),  14  Pac.  Rep.  678  [1887]. 

2  Millett  v.  Fowle,  8  Cush.  150  [1851];  *  Kendall   v.    Green    (N.    H.),    42    All. 
Dickinson    v.    Amherst  Water    Co.,    139  Rep.  178  [1894]. 

Mass.  212.  5  Greer  v.  Powell  (Iowa),  56  N.  W.  Rep. 

3  Center  St.  Church  v.  Machias  Hotel       440. 


421  CONFLICT  OF  CALLS  IN  DESCRIPTION.  §  6o/» 

in  measuring  to  a  stream  or  way,  but  that  there  was  little  or  no  authority 
when  the  measurement  was  from  the  stream  or  way.  The  presumption  is 
founded  upon  the  common  method  and  custom  of  measurement  among  sur- 
veyors, and  it  is  believed  to  be  correct.  It  may  be  controlled  by  evidence 
that  the  parties  at  the  time  established  monuments,  and  such  extrinsic 
evidence  is  admissible  to  aid  in  the  construction  of  the  deed.1 

Where  a  highway  is  mentioned  as  the  boundary-line  and  a  piece  of  land  is 
to  be  measured  along  said  highway,  there  is  no  presumption  that  the  chain 
was  carried  along  the  center  of  the  highway  in  making  the  original  measure- 
ments.2 

A  description  of  premises  as  extending  west  72  feet  from  the  northeast 
corner  of  the  lot  fixes  the  beginning  point  not  at  the  center  of  the  street  on 
which  the  lot  abuts,  but  at  that  portion  of  the  platted  territory  set  apart  for 
individual  and  separate  use,  even  though  the  plat  in  giving  the  sizes  of  the 
lots  designates  the  measures  to  the  center  of  the  street.3 

Land-line  and  boundary  have  been  held  to  be  synonymous  and  interchange- 
able terms.4 

607.  Measurements  to  Adjoining  Tracts  or  Structures.— If  land  be 
bounded  as  extending  to  other  land  of  the  grantor  or  along  another  strip  of 
land,  ever  so  narrow,  owned  by  the  grantor,  the  margin  of  the  land  will  be 
taken  as  the  boundary.  There  is  no  reason  to  suppose  'that  a  party  while 
describing  one  piece  of  land  intended  to  convey  half  of  another  piece,  as 
appurtenant  to  it.  Land  cannot  be  conveyed  as  appurtenant  to  other  land; 
if  conveyed  at  all,  it  must  be  as  parcel  of  the  land  conveyed.  Appurtenances 
are  incorporeal.5 

Chief  Justice  Gray  has  expressed  it  thus :  ' '  When  land  is  described  as 
bounded  by  other  land,  or  by  a  building  or  structure  the  name  of  which, 
according  to  its  legal  and  ordinary  meaning,  includes  the  title  in  the  land  of 
which  it  has  been  made  a  part,  as  a  house,  a  mill,  a  wharf,  or  the  like,  the 
side  of  the  land  or  structure  referred  to  as  a  boundary  is  the  limit  of  the 
grant.  But  when  the  boundary-line  is  simply  an  object,  whether  natural  or 
artificial,  the  name  of  which  is  used  in  the  ordinary  speech  as  defining  a 
boundary,  and  not  as  describing  a  title  in  fee,  and  which  does  not  in  its 
description  or  nature  include  the  earth  as  far  down  as  the  grantor  owns,  and 
yet  which  has  width,  as  in  the  case  of  a  way,  a  river,  a  ditch  or  wall,  a  fence, 
a  tree,  or  a  stake  and  stones,  then  the  center  of  the  thing  so  running  over  or 
standing  on  the  land  is  the  boundary  of  the  lot  granted. "  6 

1  Dodd  v.  Witt,  139  Mass.  63;  Newhall  Mass.  212. 

v.  Ireson,  8    Cush.   595;    Motley  v,  Sar-  2  Commrs.   v.   Morgan  (Kan.),   52  Pac. 

gent,   119  Mass.  231;  Hoar  v.  Goulding,  Rep.  896  [1898]. 

116  Mass.  132;  Blaney  v.  Rice,  20  Pick.  'Montgomery  v.   Hinds  (Ind.  Sup.),  33 

62;  Stewart    v.    Patrick,    68    N.    Y.    450;  N.  E.  Rep.  noo. 

Hamm    v.  San    Francisco,   17   Fed.   Rep.  *  Henderson  v.  Dennis,  177  111.  547. 

119     See  Walker  v.   Boynton,   120  Mass.  5  Buck  v.  Squires,  22  Vt.  484. 

349;  Dunham  v.  Gannett,  124  Mass.  151;          *  Boston  v.  Richardson,  13  Allen  146. 
Dickinson    v.    Amherst  Water    Co.,   139 


CHAPTER  XXXI. 

DETERMINATION   AND    PROOF   OF   BOUNDARIES. 

611.  Determination  of  Boundaries  is  Usually  for  Jury. — When  property 
owners  appeal  to  the  decision  of  a  court  to  settle  their  disputes  and  determine 
the  boundaries  of  their  land,  the  court  will  first  inquire  as  to  whether  the  deed 
or  contract  is  complete  and  if  the  intention  of  the  grantor  is  clear  and  con- 
clusive. If  it  be  so,  the  judge  has  but  to  interpret  the  language  of  the  deed 
and  render  his  judgment  accordingly. 

If  there  be  any  doubt  as  to  what  the  grantor  intended  to  convey,  or  if 
monuments  and  lines  cannot  be  established,  or  disputes  arise  as  to  the  location 
of  those  lines  or  lot  corners,  then  it  becomes  a  question  for  a  jury.  In  such 
cases  it  is  for  the  jury  to  determine  which  is  the  correct  line,  or  what  was  the 
evident  intention  of  the  grantor.  When  the  question  is  one  of  fact,  the  court 
will  not  decide  it;  for,  however  well  satisfied  the  judge  may  be  of  the  truth- 
fulness and  reliability  of  a  surveyor's  or  any  other  witness's  evidence,  if  it  is 
disputed  and  disputable  it  cannot  be  taken*  from  the  jury.1  Though  it  is  the 
duty  of  the  court  to  construe  written  instruments,  yet  it  is  the  province  of 
the  jury  to  determine  the  boundaries  of  land  in  controversy  from  all  the 
evidence,  including  the  description  in  the  deeds.2 

The  question  as  to  which  of  two  boundary-lines  fixed  by  different  surveys 
is  the  true  line  is  for  the  jury.3  If  the  description  is  capable  of  interpretation 
in  two  senses,  one  broader  than  the  other,  it  may  be  interpreted  by  the  jury 
from  a  survey  carefully  made  on  the  ground  by  lines  and  monuments,  from 
the  specification  of  the  quantity  granted,  and  from  a  practical  interpretation, 
by  occupancy  and  otherwise,  by  the  interested  parties.  In  settling  such  a 
case  the  quantity  of  land  specified,  the  boundaries  named,  and  the  survey  as 
made  are  all  to  be  considered,  and  by  their  united  light  the  proper  conclu- 
sion is  to  be  reached.4 

1  Chief   Justice    Cooley    in    Herpel  v.  Morris  (Pa.  Sup.),  33  Atl.  Rep.  275- 

Malone,  56  Mich.    199  [1885];  Steigleder  2  Cochran    v.    Smith  (Sup.),   26    N.    Y. 

v.  Marshall  (Pa.  Sup.),  28  Atl.  Rep.  240;  Supp.  103. 

Dwyre   v.   Speer  (Tex.),   27  S.    W.   Rep.  3  Macauley     v.    Cunningham     60    111. 

585;  Humphrey  v.    Cooper,    183    Pa.   St.  App.    28;  Ponet  v.  Wills  (Cal.),  48  Pac. 

432  [1898];  Parker  v.   Salmons  (Ga.),  28  Rep.  483.                          . 

S.  E.   Rep.  681;  Williams  v.  Hughes  (N.  *Cavazos     v.    Trevmo,    6    Wall.    773 

C.),  32  s-   E-  ReP-  325  [1899];  Wilson  v.       [1867]. 

422 


423  DETERMINATION  AND    PROOF  OF  BOUNDARIES.         §  6 1 2. 

The  true  location  of  disputed  lines  is  a  question  of  fact  for  a  jury  where 
the  testimony  of  the  original  surveyor  and  that  of  a  subsequent  one  are  in 
conflict,1  and  the  location  of  such  lines  is  not  a  question  for  a  surveyor's 
opinion.2 

612.  Court  should  Leave  Jury  Unbiased  to  Determine  Boundary. — The 
determination  of  the  boundaries  being  a  question  for  the  jury,  it  is  wrong  for 
the  court  when  a  case  rests  upon  the  testimony  of  surveyors,  though  the  trees 
originally  marked  or  some  of  them  are  on  the  ground  and  have  been  examined 
by  such  jury,  to  charge  that,  owing  to  the  length  of  time  since  the  survey  was 
made,  "it  is  not  to  be  expected  that  the  monuments  then  made  upon  the 
ground  are  now  to  be  found,"  because  it  tends  to  discredit  the  defendant's 
testimony.3  Thus,  in  a  controversy  as  to  which  of  two  trees  marked  the 
corner  of  a  lot,  it  was  held  that  it  was  for  the  jury  to  decide  which  tree  was 
the  corner,  and  that  it  was  error  for  the  judge  to  charge  the  jury  that  it  was 
one  or  the  other  tree.4  When,  however,  no  testimony  has  been  offered  locat- 
ing the  monuments  referred  to  in  a  deed,  the  judge  may  say  to  the  jury  that 
"  by  the  record  title  the  plaintiff  has  not  fixed  the  boundary  of  the  line  .  .  . 
the  line  in  dispute."  5 

Where  land  was  conveyed  as  bounded  on  a  certain  street  and  running 
back  a  certain  distance,  it  was  held  a  question  for  the  jury  to  determine 
whether  the  grantor  referred  to  the  street-line  which  was  then  apparent  or  the 
line  of  the  highway  as  laid  out  and  recorded.6  It  was  held  wrong  to  instruct 
a  jury  that  they  must  satisfy  themselves  as  to  one  disputed  point,  and  that 
only  in  case  that  they  could  not  satisfy  themselves  as  to  that  point  could  they 
resort  to  any  other  point  in  the  description.  The  jury  should  be  left  free  to 
consider  all  the  calls  of  the  description,  and  to  locate  the  disputed  lines  by  all 
the  evidence  before  them.7 

When  an  ancient  deed  described  land  as  "  beginning  on  the  sound  at  a 
ditch"  which  had  become  obliterated,  it  was  held  to  be  a  question  for  the 
jury,  aided  by  all  the  evidence  of  the  facts;  and  this  was  so  even  though  the 
starting-point  had  been  settled  as  the  corner  of  adjacent  tracts,  and  there  was 
still  a  ditch  which  if  continued  would  meet  the  point  in  controversy.8  The 
question  being  one  of  fact,  it  lies  entirely  within  the  province  of  the  jury.  If 
the  judge  make  an  equal  division  between  claimants  of  a  quarter-section  which 
does  not  contain  the  full  acreage,  such  division  will  not  hold  even  though 

1  Herpel  v.  Malone,  56 Mich.  199  [1885].       438    [1898].     And   see    Adams    v.    Half 

2  Stewart    v.    Carleton,    31    Mich.     270;       (Tex.),  24  S.  W.  Rep.  334. 

Cronin  v.  Gore,  38  Mich.   381;  Wilson  -v.  5  Chase  v.  Martin  (Me.),   15  Atl.   Rep. 

Morris  (Pa.  Sup.),  33  Atl.  Rep.  275.  68  [1888]. 

'Cross  v.  Tyrone  M.  &  N.  Co.  (Pa.),  6  Brown    v.    Fishel   (Sup.),    31    N.    Y. 

15  Atl.  Rep.  643  [1888].  Supp.  361. 

4  Berry   v.    Watson,   15    Atl.    Rep.  618  7  Blum  v.   Bowman  (C.  C.  A.),  66  Fed. 

[1888];  Davidson    v.   Shuler's  Heirs  (N.  Rep.  883. 

C.),  26  S.  E.   Rep.  340;  Oliver  v.   Brown  8  Roberts  v.   Preston  (N.  C.),   10  S.   E. 

(Me.),  15  Atl.   Rep.   599  [1888];  Grief  v.  Rep.  983. 
Norfolk  &  W.  R.  Co.  (Va.),  30  S.  E.  Rep. 


•§6l2.          OPERATIONS  PRELIMINARY   TO    CONSTRUCTION.  424 

the  tract  has  never  been  divided  by  a  government  surveyor,  and  though  expert 
.surveyors  testified  that  such  was  the  proper  method  of  dividing  it.  It  was 
maintained  that  the  question  as  to  location  of  the  dividing-line  was  for  the 
jury.1 

If  identity  is  the  only  question  to  be  decided  by  the  jury,  and  if  it  is 
.satisfied  as  to  the  land  which  was  granted,  no  further  testimony  should  be 
required.2 

The  judge  should  not  only  leave  it  to  the  jury  but  he  should  leave  it  to 
their  unprejudiced  decision.  If  the  instructions  by  the  court  to  the  jury  are 
calculated  to  weaken  the  effect  of  either  party's  testimony  or  to  mislead  the 
jury,  it  will  be  an  error  which  will  give  a  new  trial.  Thus  a  remark  by  a 
judge,  in  referring  to  testimony  of  a  surveyor,  that  "  It  would  be  a  marvel  in 
surveying  if  they  found  right  at  the  end  of  the  distance  called  for  in  the 
original  survey  the  stump  of  the  identical  tree,"  was  held  not  only  to  be 
inaccurate  as  to  general  proposition,  but  was  calculated  to  unduly  weaken  the 
•effect  of  the  surveyor's  evidence,  and  was  error.3 

However  clearly,  conclusively,  and  absolutely  a  surveyor's  evidence  may 
determine  the  boundaries  of  an  estate,  the  question  will  not  be  taken  from 
the  jury  unless  the  court  can  determine  the  parties,  the  tract,  and  its 
boundaries  from  the  instrument  itself.  If  they  be  disputed,  the  court  will 
submit  the  determination  of  these  questions  to  a  jury.  In  a  recent  case  a 
surveyor  testified  that  two  corners  were  found  upon  the  ground,  and  that  the 
line  should  be  half-way  between;  that  he  ran  a  line  dividing  the  distances 
equally,  and  that  the  distances  checked;  that  it  followed  a  line  of  blazed  trees 
which  were  original  line-trees,  and  that  at  about  the  right  distance  were  the 
remains  of  a  pine  stump,  the  bearing-tree.  Yet,  with  this  most  satisfactory 
survey,  the  question  was  given  to  the  jury.4  It  will  be  seen  that  facts  and 
conditions  which  might  leave  no  doubt  in  the  minds  of  surveyors  will  not  be 
conclusive  with  a  judge.  However  well  satisfied  he  may  be  of  the  true  loca- 
tion, he  must  leave  it  to  the  opinions  of  jurymen  who  may  or  may  not  have 
more  than  ordinary  intelligence,5 

The  legal  proposition  that  what  constitutes  a  boundary  in  a  deed  is  a  fact 
for  the  jury  is  too  well  founded  to  be  controverted,  and  the  boundary  may  be 
proved  by  any  kind  of  evidence  which  is  competent  to  prove  any  fact.6 

From  what  has  been  said  it  cannot  but  be  evident  that  success  in  disputes 

1McKey  v.    Hyde   Park,   10   Sup.    Ct.  Rep.  316;  Reast  v.   Donald  (Tex.  Sup.). 

Rep.  512.  19  S.  W.  Rep.  795. 

2  Blake  v.  Doherty,  5  Wheat.  359.  And  5  Note. — A    plea   for   special   juries  on 
see  also  Raymond  v.  Coffey,  5  Oreg.  132  special  subjects.     A  jury  of  twelve  ordi- 
[1873];    Brown  &  Rockwell   v.  Willey,  42  nary  men  is  no  more  competent  to  judge 
Pa.    St.    205;   Waterman  v.   Johnson,    13  technical  questions  of  surveying  than  of 
Pick.  261.  medicine  or  of  law. 

3  bughman  v.  Byers(Pa.),  12  Atl.  Rep.  6  Brown  &  Rockwell  v.  Willey,  42  Pa. 
357  [1888];  Woodbury  v.  Venia  (Mich.),  St.  205;  Opdyke  v.  Stephens,  4  Butcher 
72  N.  W.  Rep.  189  [1897].  89. 

-  Higgins  v.    Ragsdale    (Cal.),  23    Pac. 


425  DETERMINATION  AND    PROOF  OF  BOUNDARIES.          §614. 

of  boundaries  depends  chiefly  upon  knowing  what  to  present  and  how  to 
present  the  case  strongly  and  plainly  before  the  jury.  A.  case  will  be  best 
handled  by  an  attorney  well  versed  in  the  law  of  boundaries  and  with  a  com- 
prehensive knowledge  of  surveying  methods  and  practical  experience  in  the 
field,  since  so  much  depends  upon  the  practical  application  of  the  description 
in  the  deed  to  the  subject-matter,  the  estate. 

613.  Maps  and  Plans  Referred  to  in  a  Deed  Become  a  Part  Thereof.* — 
When  a  deed  refers  to  another  deed,  map,  survey,  or  record  of  judgment,  the 
instrument  referred  to  becomes  a  part  of  the  deed,  and  both  should  be  con- 
strued together.1     When  a  plat  is  referred  to  as  descriptive  of  the  natural 
boundaries  of  land  conveyed,  it  must  be  considered  as  giving  the  true  descrip- 
tion as  much  as  if  it  were  embodied  in  the  deed.2     When  a  deed,  after  giving 
the  description   of  the  premises  conveyed,    states  that  all  the  premises  are 
situated  in  a  certain  section,  township,  etc.,  "  according  to  the  map  drawn 
on  back  hereof, ' '  such  a  plat  becomes  a  part  of  the  deed  and  a  descriptive 
part  of  the  subject  of  the  conveyance.3     A  reference  to  a  recorded  plat  for 
description  makes  the  plat  a  part  of  the  deed,  so  far  as  it  affects  the  location 
of  the  lot  with  respect  to  surrounding  lots.4 

The  plat  referred  to  cannot  be  presumed  to  be  inaccurate,  and  it  may  be 
regarded  as  more  fully  representing  the  intention  of  the  parties  than  the  lan- 
guage of  the  deed  so  far  as  fixed  monuments  are  concerned.  Where  such 
plat  shows  a  single  line  for  the  stream  as  a  boundary,  it  will  be  taken  as 
representing  they  center  of  the  stream,  and  not  the  banks,  as  it  would  if 
another  line  were  drawn  for  the  margin.5  If  the  map  does  not  contain  the 
number  by  which  the  lot  was  designated  and  does  not  furnish  sufficient  data 
for  locating  the  lot,  parol  evidence  may  be  admitted  to  identify  the  lot  on  the 
map.6 

614.  Description  Complete,  and  General  Reference  to  Maps  and  Deeds. 
—If  the   description   in   the   deed   be   clear  and  complete  and  there  be   no 
apparent  ambiguity  on  the  face  of  it,  the  fact  that  there  is  added  a  statement 
that   land  conveyed  is  the  same   described  in  a   certain  recorded  agreement 
between  the  grantor  and  another  party  will   not  justify  a  reference  to  such 
agreement    to    show  that    a    less    amount    of    land   was  conveyed   than    was 

1  Heffeman  v.  Otsego  W.  P.  Co.  (Mich.),  2Slauson  v.  Goodrich  T.  Co.,  75  N.  W. 

43  N.W.  Rep.  1096;   Blum  v.  Rice  (Tex.),  Rep.  574;  Northern  Pac.  R.  Co.  v.  Scott, 

32  S    W  Rep.  1056;  St.  Louis  v.  Mo.  Pac.  etc.,  Co.  (Minn.),  75  N.  W.  Rep.  737. 

R.  Co.  (Mo.),  21  S.  W.  Rep.  202;  McCul-  'Piper  v.  Connolly,  108  111.  646  [1884]. 

lough  v.   Olds  (Cal.)i  41   Pac.   Rep.  420;  *  Smith  v.  Young,  160  111.  163. 

Green   v.   Doane,   15   Cal.  304;  Davis  v.  6  Piper  v.  Connolly,  108  111.  646  [1884]. 

Rainsford,     17     Mass.     207;     Glover    v.  See  Jefferies  v.  East  Omaha  Co.,  10  Sup. 

Shields,    32    Barb.    374;    Birmingham    v.  Ct.  Rep.  518;  O'Brien  v.   Flynn  (Mass.), 

Anderson,  48  Pa.  St.  253;  Noonan  v.  Lee,  33  N.  E.  Rep.  500. 

2    Black    504;      Wait's    Engin.    &    Arch.  « Redd  v.   Mum-  (Cal.),  30   Pac.   Rep. 

Jurisp.,  Sees.  213-233.  132. 

*See  Sees.  598,  599,  supra. 


§615.  OPERATIONS  PRELIMINARY    TO    CONSTRUCTION.  426 

described  in  the  deed ;  l  and  where  the  description  by  metes  and  bounds  is 
followed  by  the  words  "or  the  one-fourth  part  of  all  the  land  that  my  father 
M.  died  seized  and  possessed  of,"  the  clause  will  not  control  the  description 
by  metes  and  bounds  so  as  to  include  other  land  willed  by  the  deceased.2* 

It  is  equally  well  settled  that  nothing  will  pass  by  a  deed  except  what  is 
described  in  it,  whatever  the  intention  of  the  parties  may  have  been.  The 
r.ule  in  such  cases  is  that  "  When  a  deed  contains  an  accurate  description  of 
permanent  boundaries  capable  of  being  ascertained,  a  general  reference,  in 
addition,  to  the  premises  as  in  the  possession  of  the  grantor  or  grantee  will 
not  pass  title  to  land  outside  of  the  boundaries  given."  But  little  weight 
can  be  ascribed  to  a  statement  of  the  quantity  of  land  in  the  deed,  as  that  is 
followed  by  the  words  "  be  the  same  more  or  less,"  and  according  to  settled 
rules  cannot  be  held  to  affect  the  quantity  of  land  included  within  specified 
boundaries,  when  those  are  clearly  and  certainly  ascertainable.3f 

615.  Maps  and  Plans  Referred  to  are  Evidence  of  Boundaries, — A  map, 
plat,  or  document  referred  to  in  a  deed  for  the  description  of  the  boundary 
and  land  conveyed  is  admissible  in  evidence  of  such  boundaries.4     A  sketch 
or  a   plat   not   marked  with    courses   and   distances,   made  by  a  non-expert 
grantor  and  annexed  to  his  deed,  is  admissible  with  the  deed  as  an  illustra- 
tion.5    A  prior  bond  for  a  conveyance  which  has  been  made  in  exchange  for 
a  deed  may  be  referred  to,  in   construing  the  deed,  to  show  the  intention  of 
the  parties  as  respects  the  sale,  in  connection  with  other  circumstances.6 

Where  plats  and  maps  have  been  made  of  property,  as  where  an  estate  has 
been  divided  'up  into  building-lots,  and  conveyances  have  been  made  by  the 
lot-number  and  a  mere  reference  to  the  map,  the  grantee  takes  only  so  much 
as  is  shown  on  the  plat.7 

616.  Copies  of  Maps  and  Records  as  Evidence. — To  make  copies  of  maps 
and  records  evidence  in  court  they  should  be  accompanied  by  the  certificate 
of  the  public  officer  to  whose  custody  such  maps  and  records  have  been  legally 
consigned.      A  true  copy  of  such   documents  must  be  made  and  furnished. 
A  certificate  of  a  public  officer  that  certain  facts  appear  of  record  in  his  office,8 
or  a  certificate  by  the  surveyor  that  "the   courses  and  distances  are  correctly 
laid   down  from  official   surveys   made  by   me,"  without  more,    will   not  be 
received.9     Certificates  of  surveyors  attached  to  the  duly  certified  copy  of  a 

1  Jones  v.  Webster  W.  Co.,  85  Me.  210;  *  Taylor  v.    McConigle  (Cal.),   52  Pac. 

McCullough  v.  Olds  (Cal.),  41   Pac.  Rep.  Rep.  159. 

420.  ,  18  S.  E.  Rep.  680. 

2Midgett   v.  Twiford  (N.  C.),  26  S.  E.  6  Piper  v.  Conolly,  108  111.  646. 

Rep.  626.  'O'Brien   v.   Flynn  (Mass.),  33  N.    E. 

3  Jackson  v.  McConnell,  19  Wend.  174;  Rep.  500. 

Jackson  v.  Moore,  6  Conn.  706;  Thayer  8  Francis  v.  Newark  (N.  J.),  33  Atl.  Rep. 

v.  Finton,  108  N.  Y.  394;  Jones  v.  Smith,  853;  Goodwin  v.  McCabe,  75  Cal.  584. 

73  N.  Y.  205.  9  Major  v.  Watson,  73  Mo.  661  [1881], 

*  See  Sec.  548,  supra.  \  See  Sees.  588-597,  supra. 


4-7  DETERMINATION  AND    PROOF  OF  BOUNDARIES.          §619. 

map  from  the  archives  of  the  land  office  are  not  admissible  to  prove  disputed 
facts.1 

A  sketch  of  the  survey  under  which  a  certificate  was  issued,  taken  from  a 
map  of  the  county  wherein  the  land  was  situated,  together  with  the  certificate 
of  the  commissioners  reciting  that  the  sketch  was  a  true  copy  from  such  map, 
and  that  the  map  was  made  by  a  certain  person,  giving  the  date,  and  that  it 
had  been  in  the  land  office  in  use  as  the  official  map  of  said  county  between 
certain  dates,  is  admissible.2  Where  a  registered  copy  of  a  deed  is  duly 
admitted  in  evidence,  the  registry  is  evidence  that  the  deed  was  executed.3 

Parol  evidence  of  the  contents  of  a  deed  is  not  admissible  when  the  deed 
has  been  lost,  unless  it  appear  that  inquiry  for  it  was  made  of  a  person  to 
whom  it  was  last  sent,  and  that  it  is  not  in  the  possession  of  the  party  claim- 
ing under  it.4 

617.  Admission   of    Field-notes   as   Evidence. — The   field-notes    of    a 
deceased  surveyor,  showing  the  boundaries  of  an  old  survey  which  it  is  proved 
are  identical  with  some  of  the  boundaries  of  the  tract  in  dispute,  are  admissi- 
ble as  evidence  to  show  the  original  location  of  such  boundaries.5     When  a 
survey  is   made   without   legal   authority,    copies   of  the   field-notes   are  not 
admissible  as  evidence  even  though  certified  from  the  General  Land  Office.6 

When  the  provisions  of  an  act  require  deputy  surveyors  to  enter  surveys 
in  a  survey-book,  which  requirement  is  directory  only,  the  neglect  of  the 
surveyor  to  so  enter  a  survey  will  not  deprive  an  owner  of  his  title.7 

618.  Government   Maps   as   Evidence. — Maps  and  field-notes   made  by 
government  surveyors  (which  term  includes  county  surveyors)  in  obedience 
to  general  or  special  statute  laws,  and  filed  in  the  proper  public  offices  desig- 
nated, are  good  evidence  of  the  true  shape  and  location  of  the  land.8 

Where  statutory  law  requires  a  plat  of  a  survey  of  lands  applied  for,  with 
the  field-notes  thereof,  to  be  filed  with  the  application  for  purchase,  an  appli- 
cation with  the  plat,  but  without  the  field-notes,  is  insufficient.9 

619.  Testimony  of  Old  Inhabitants  as  to  Location  of  Boundary  Lines.* 
— The  determination  of  boundaries  of  land  is  frequently  a  question  not  so 
much  of  surveying  as  it  is  of  proof  by  witnesses,  whether  by  surveyors  or  by 
former  owners,  or  by  early  inhabitants  of  the   neighborhood.      Often  a  case 
will  go  to  the  jury  on  the  evidence  of  such  witnesses  who  have  s\vorn  to  the 
existence  of  monuments  or  marks  upon  the  ground,  which  if  established  by 

1  Keuchler  v.  Wilson  (Tex.),  18  S.  W.  262.       See  Stiles  v.   Estabrooks  (Vt.),  29 
Rep.  317.  Atl.  Rep.  961. 

2  Rogers  v.  Mexia  (Tex.),  36  S.  W.  Rep.  6  Von  Rosenberg  v.    Haynes  (Tex.),  20 
825.  S.  W.  Rep.  143. 

3  Hathaway    v.    Spooner,    9    Pick.    23  7  Wilson  v.  Homer,  59  Pa.  St.  155. 
[1829].  8  Redmond  v.   Mullenax  (N.  C),  18  S. 

4Trindle    v.   Edwards  (Tex.),  19  S.  W.       E.  Rep    708. 

Rep.  772.  9  State  v.  Forrest  (Wash.).  43  Pac.  Rep. 

5Stanus  v.  Smith  (Tex.),  30  S.  W.  Rep.       51. 

*  See  Sec.  630,  infra. 


§620.  OPERATIONS  PRELIMINARY    TO    CONSTRUCTION.  428 

such  testimony  will  determine  the  boundaries  of  the  land  independent  of  any 
efforts  made  by  surveyors,  or  of  conclusions  arrived  at  by  them.  If  witnesses 
come  into  court  and  swear  that  in  a  certain  place  a  monument  existed  or  a 
certain  marked  tree  was  cut  down,  and  that  it  was  regarded  by  the  community 
as  a  well-established  corner  or  monument,  it  may  be  accepted  by  the  jury  and 
court  as  the  true  line  no  matter  how  many  surveyors  testify  to  the  contrary. 1 

620,  Traditional  Proof  of  Boundaries. — At  common  law  traditional 
proof  was  received  only  when  the  boundaries  in  question  were  public  or 
quasi- public,  or  when  the  private  line  was  coincident  or  dependent  on  such 
public  boundary  or  monument.  In  this  country  the  rule  has  not  been  strictly 
adhered  to,  and  declarations  in  regard  to  private  boundaries  by  persons  since 
deceased,  who  shall  appear  to  have  been  in  a  situation  to  possess  the  informa- 
tion and  who  were  not  interested,  have  been  admitted  in  evidence,  as,  for 
example,  the  declarations  of  the  surveyor  who  originally  ran  out  the  lines,  of 
of  some  members  of  his  party.2  Some  jurisdictions  require  that  the  declarant 
shall  have  been  in  possession  as  owner  at  the  time,  and  shall  have  been 
engaged  in  pointing  out  the  boundary  in  question.3 

This  relaxation  of  the  rule  and  its  application  to  private  boundaries  is 
doubtless  due  to  the  fact  that  a  single  surveyed  line  is  common  to  a  number 
of  estates  and  thus  becomes  a  matter  of  general  public  interest  and  a  quasi- 
public  boundary.4  Declarations  of  a  deceased  person  as  to  the  boundaries  of 
his  land,  though  not  made  on  the  land,  have  been  admitted  as  evidence 
between  other  parties  where  it  is  shown  that  the  deceased  had  means  of  knowl- 
edge of  such  boundaries  and  no  apparent  interest  to  misrepresent.  Such 
declarations  are  generally  admissible  to  prove  public  boundaries  and  public 
ways.5  Declarations  of  a  disinherited  person  since  deceased,  made  before  any 
controversy  has  arisen  in  reference  to  private  boundaries,  are  admissible  as 
evidence;  and  this  is  so  even  though  the  declarant  was  a  slave  at  the  time, 
since,  if  alive,  he  would  now  be  competent  to  testify.6  The  declarations  of 
an  owner  since  deceased,  when  leaving  a  strip  of  land  open,  explaining  his 
intentions  and  reasons  for  so  doing,  are  properly  admitted  in  evidence  in 
behalf  of  a  person  claiming  under  such  prior  owner.7  Declarations  by 
persons  who  have  private  interests  cannot  be  introduced  even  though  they 
pertain  to  matters  of  general  interest.8  The  statements  must  have  been  made 
by  persons  now  dead,  and  in  some  states  they  are  confined  to  ancient  bound- 
aries, and  to  declarations  of  deceased  owners,  made  while  in  the  act  of  pointing 
out  their  own  boundaries.  In  such  a  case  the  declaration  need  not  be  against 

1  James  v.   Lewis,    50   N.  Y.  Supp.  230  886. 

[1898];  Van   Dusen  v.    Shiveley  (Oreg.),  4  Best's  (Chamb.)  Evidence  474. 

39    Pac.    Rep.    76;    Woodbury   v.   Venia  6  Lawrence  v.  Tenant  (N.  H.),  15  All, 

(Mich.\  72   N.  W.  Rep.  189   [1897];  Col-  Rep.  543  [1888]. 
lins  v.  Sutton  (Va.),  26  S.  E.  Rep.  415.  6  Whitehurst  v.  Pettipher,  87  N.  C.  179 

3  Sexton  v.  Hollis,  26  S.  C.  236;  Elliott  [1882],  and  cases  cited, 
v.  Pearl,  10  Pet.  412.  7Quinn  v.  Egleston.  108  111.  248  [1883]. 

8  Curtis  v.  Aronson  (N.  J.),  7  Atl.  Rep.  8  Best's  (Chamb.)  Evidence  474. 


429  DETERMINATION  AND   PROOF  OF  BOUNDARIES.          %  62O. 

interest  or  in  disparagement  of  title.  They  are  received  when  nothing  appears 
to  show  an  interest  to  deceive  or  misrepresent.1  If  declarations  have  beea 
made  against  one's  own  proprietary  or  pecuniary  interests,  they  are  admissible 
in  some  courts  if  the  declarant  be  dead;  but  disability,  even  though  equiv- 
alent to  death,  does  not  render  such  declarations  admissible:  he  must  be 
deceased. 2 

In  a  recent  South  Carolina  case  the  opinion  was  expressed  that  three 
things  were  necessary  to  admit  hearsay  reports  and  declarations  of  them: 
(i)  that  the  boundaries  must  have  been  ancient;  (2)  that  the  declarant  must 
be  dead;  (3)  that  he  must  have  been  in  a  position  to  know  the  boundary,  as 
the  surveyor  or  one  of  the  chainmen  who  originally  ran  the  lines.  This  is  an 
exception  to  the  general  rule  which  excludes  "  hearsay  "  evidence,  and  it  has- 
been  extended  so  as  to  render  such  testimony  admissible  in  cases  of  boundaries 
between  private  estates,  and  to  admit  the  declarations  of  deceased  persons 
who  shall  appear  to  have  been  in  a  situation  to  possess  the  information,  and 
who  were  not  interested,  as,  for  instance,  the  declarations  of  surveyors,  chain- 
carriers,  etc.  The  courts,  however,  are  against  extending  such  exceptions  to 
a  well-settled  and  highly  salutary  rule  of  evidence  any  further. 3 

A  subsequent  survey  and  location  of  a  dividing-line  will  not  suffice.  Thi& 
would  allow  a  perversion  of  the  rule  against  hearsay  evidence,  and  permit  any 
one  at  any  time,  without  any  special  information  on  the  subject,  and  without 
any  responsibility,  and  in  the  absence  of  interested  parties,  to  run  a  supposed 
dividing-line  at  his  pleasure  and  thus  make  admissible  testimony  which  other- 
wise would,  and  should,  be  excluded.  The  information  of  the  declarant  must 
be  from  his  own  observation  and  experience  and  not  what  has  been  imparted 
to  him  by  others.4  A  witness  whose  only  knowledge  is  derived  from  the  fact 
that  an  owner  of  adjoining  land  ran  the  dividing-line  in,  the  presence  of  the 
witness,  it  not  being  shown  that  the  adjoining  owner  was  a  surveyor  and  who 
originally  located  it,  nor  that  he  was  dead,  is  incompetent  to  testify  to  the 
location  of  a  boundary-line.5  Declarations,  at  the  time  of  making  survey,  by 
surveyors  who  are  since  deceased  have  been  admitted  a  spart  of  the  res- 
gestce.*  A  witness  no  doubt  has  the  .right  to  testify  at  least  as  to  what  he  saw, 
and  such  testimony  is  primary  and  in  no  sense  secondary  or  "hearsay";, 
but  when  a  witness  seems  to  have  acquired  a  very  full  knowledge  which  must 
necessarily  have  been  derived  from  information  imparted,  as  well  as  from 
observation,  how  shall  the  court  distinguish  as  to  how  much  of  the  testimony 
was  derived  from  one  source,  and  how  much  from  the  other  ? 7 

1  Curtis  v.  Aronson  (N.  ].),  7  Atl.  Rep.       i  Greenleaf's  Evidence,  §  145. 

886  [1887].  6  Alexander    v.    Gossett    (S.  C.),    Sup. 

2  Best's  (Chamb.)  Evidence  474.  Ct.,  Oct.  12,  1888. 

8  Mima  Queen  v.  Hepburn,  7  Cranch  6  Barclay  v.  Howell's  Lessee,  6  Pet. 

290.  And  see  39  Alb.  Law  Jour.  134  498,  referred  to  by  McLean,  J.,  in  icx 

[1889];  Smith  v.  Cornett  (Ky.),  38  S.  W.  Pet.  714;  Birmingham  v.  Anderson,  40 

Rep.  689.  Pa.  St.  506. 

4  39  Albany  Law  Journal  134  [1889].  See  ,  7  Alexander  v.  Gossett  (S.  C.),  39  Alb. 

Blythe  v.  Sutherland,  3  McCord  259,  and  L.  Jour.  134  [1888]. 


§621.  OPERATIONS  PRELIMINARY   TO    CONSTRUCTION.  43<D 

Where  the  location  of  a  private  boundary  depends  upon  showing  a 
section-line,  the  latter  may  be  shown  ,by  proof  of  general  reputation.1  A 
witness  having  knowledge  may  testify  whether  the  lines  described  in  a  deed, 
when  applied  to  the  face  of  the  earth,  surround  the  lot.2 

On  an  issue  of  the  location  of  a  survey  whose  boundaries  depended  on  the 
location  of  other  surveys,  opinions  of  surveyors  as  to  how  they  would  locate 
the  latter,  and  that  if  such  surveys  were  located  in  a  certain  manner  it  would 
be  contrary  to  the  field-notes  for  the  same,  are  inadmissible,  since  such  tes- 
timony involves  a  question  of  law.3 

Where  several  witnesses  testified  that  the  patentee  agreed  that  the  true  divi- 
sion-line should  be  "the  top  or' ridge  of  the  mountain  between  Lot  and 
Second  creeks/'  and  the  deeds  only  called  "  to  the  top  of  the  ridge,  thence 
running  with  the  dividing-ridge  between  Lot  creek  and  Second  creek, ' '  such 
deed  was  held  to  establish  the  division-line  as  supported  by  the  evidence.4 

A  discrepancy  between  calls  of  a  plat  and  marks  on  the  ground  may  be 
explained  by  evidence  that  the  tract  is  larger  than  the  plat  called  for,  and  that 
the  lots  as  then  occupied  were  of  a  certain  length,  corresponding  to  the 
-original  tract.5 

621.  Testimony   of  Old   Inhabitants   against   Paper  Title, — When  the 
dividing-line  of  two  estates  fe  in  controversy  and  it  appears  that  there  is  no 
record  of  the  original   monuments  or  surveys,   the  testimony  of  those  who 
remember  where  the  corners  of  lines  were,  as  shown  by  a  fence  erected  nearly 
forty  years  before  the  trial  and  subsequently  removed  on  becoming  dilapidated, 
will   control  in  favor  of  the   party  who   claims  to  such  fence  and  who  has 
occupied  the  premises  for  more  than  twenty  years  prior  to  the  bringing  of  an 
action,  as  against  the  paper  title  of  the  parties  and  the  testimony  of  many 
witnesses  that  they  do  not  remember  any  such  fence  and  that  they  have  never 
seen  it.6 

Evidence  of  marks  on  trees  claimed  to  be  line-trees  is  admissible.7 

622.  Ancient  Maps  and  Documents. — Strictly,  an  ancient  document  must 
be  so  old  as  to  be  beyond  living  memory,  but  the  idea  of  an  ancient  document 
has  been  identified  with  a  possession  for  thirty  years.8     An  ancient  document, 
as  the  term  is  usually  employed  in  the  law  of  evidence,  is  a  document  which 
is  not  less  than  thirty  years  old.      In  some  cases  it  has  been  declared  that  the 
map    or   deed    should    be  more  than    thirty  years  old,    and   in    exceptional 

1Mullaney  v.   Duffy  (111.  Sup.),  33  N.  163  [1899]. 
E.  Rep.  750.  6  Richwine  v.  Presby.  Ch.  (Ind.),  34  N. 

'Carter  v.    Clark  (Me.),  42    All.  Rep.  E.  Rep.  737. 

398  [1898].     And  see  Allen   v.  Worsham,  7  Greif  v.  Norfolk  &  W.   R.  Co.  (Va.), 

49  S.  W.  Rep.  525  [1899].  30  S.  E.  Rep.  438  [1898]. 

3Fulcher   v.    White    (Tex.),    48   S.    W.  86><r  Gilbert  on  Evidence  (2d  ed.),  pp.  95, 

Rep.  881  [1899].  102;  Greenleaf  on  Evdce.,  §  507;  Taylor 

4Grigsby    v.    Combs   (Ky.),    21    S.  W.  on  Evdce.,  §  659;  Clark  v.  Owens,  18  N. 

Rep.  37-  Y-  437- 

6  Kron  v.  Daugherty,  9  Pa.  Super.  Ct. 


43 T  DETERMINATION  AND    PROOF  OF  BOUNDARIES.          §623. 

instances  documents  which  are  twenty-five,  twenty-eight,  or  nearly  thirty 
years  old  have  been  admitted  as  evidence.1 

Ancient  plottings  or  plans  and  field-notes  made  by  a  surveyor  are  inadmis- 
sible to  prove  boundaries  as  an  ancient  map.2  The  courts  distinguish  field- 
notes  from  recitals  in  deeds,  on  the  ground  that  the  latter  are  contained  in 
documents  which  constitute  transactions  in  reference  to  the  land.  A  certified 
copy  of  the  record  of  a  deed  has  been  held  not  admissible  as  of  an  ancient 
instrument  unless  the  deed  was  properly  of  record. 3 

623.  Computing  the  Age  of  a  Document, — In  computing  the  age  of  an 
ancient  document  to  determine  whether  or  not  it  is  an  ancient  instrument 
within  the  rules  of  evidence,  the  time  is  usually  reckoned  from  the  date  of  the 
execution.  This  rule  is  not  universal,  but  is  modified  under  some  circum- 
stances in  reference  to  wills.  The  time  is  reckoned  up  to  the  date  when  the 
instrument  is  offered  as  evidence,  and  a  document  which  is  thirty  years  old  at 
that  time  is  an  ancient  document  even  though  it  may  have  been  less  than 
thirty  years  old  when  the  suit  was  begun.  Generally  a  document  will  prove 
itself  to  be  an  ancient  document,  and  will  be  admitted  as  evidence  without 
proof  of  its  being  authentic  or  of  having  been  executed,  as  by  calling  the  attest- 
ing witnesses,  or  by  proving  their  handwriting,  or  in  any  other  manner.  This 
rule  applies  only  in  the  absence  of  fraud  or  in  the  absence  of  proof  that  the 
instrument  is  invalid,  which  must  appear  on  the  face  of  the  instrument,  and 
only  when  there  is  proof  that  it  comes  from  the  proper  custody.  In  some 
instances  the  courts  have  held  that  it  must  be  shown  that  possession  was  held 
or  action  taken  in  accordance  with  the  provisions  of  the  instrument. 

If  there  are  erasures  or  interlineations  or  mutilations,  the  presumption  of 
its  genuineness  is  overcome  and  it  must  be  proved  in  the  usual  way.  The 
instrument  should  come  from  a  proper  custody,  such  as  that  in  which  it  might 
reasonably  be  expected  to  be  found.  '  If  it  be  not  proven  to  have  come  from 
such  custody,  then  it  must  be  proven  in  the  usual  manner.  It  has  been  held 
that  the  custody  need  not  be  the  most  proper  custody.  The  ancient  docu- 
ment should  be  shown  to  have  been  in  the  possession  or  custody  of  parties  to 
whom  it  would  naturally  or  reasonably  have  come,  or  some  explanations 
should  be  offered  as  to  why  or  wherefore  the  possession  was  unusual. 
Registry  offices,  church  records,  public  and  private  libraries  and  museums, 
may  be  proper  custodians  of  deeds  and  other  papers  which  are  offered  in 
evidence.  Relatives  and  descendants  of  grantors  and  grantees,  into  whose 
possession  such  papers  might  reasonably  and  properly  come,  may  be  proper 
custodians  of  such  documents. 

There  is  some  confusion  in  the  decisions  as  to  how  far  it  is  necessary  to 
show  some  act  performed  or  some  possession  acknowledged  in  accordance 

lz  Amer.   &  Eng.   Ency.   Law  (2d  ed.)       132  Mass.  483. 

322.  3Settegast  v.  Charpiot  (Tex.),  28  S.  W. 

2  Boston  Water-power  Co.  v.   Hanlon,       Rep.  580. 


§023.          OPERATIONS  PRELIMINARY    TO    CONSTRUCTION. 

with  the  terms  of  the  document.  In  this  country  it  is  pretty  well  settled  that 
evidence  of  possession  is  alone  sufficient  authentication  of  the  deed  to  show 
it  to  be  ancient,  but  there  is  a  difference  of  opinion  as  to  whether  the  proof 
of  possession  under  the  deed  is  necessary  to  i(ts  admission  in  evidence.  In 
some  states  such  proof  is  absolutely  required,  while  in  others  the  deed  is 
admitted  in  evidence  where  no  possession  is  shown,  if  there  be  some  other 
evidence  to  corroborate  its  genuineness. 

It  is  the  prevailing  doctrine  that  the  length  of  possession  necessary,  where 
that  alone  is  relied  upon,  is  thirty  years;  but  where  there  is  other  evidence 
tending  to  corroborate  the  testimony,  this  rule  has  been  relaxed.  In  New 
York  it  has  been  held  that  evidence  of  possession  of  part  of  the  premises'  is 
sufficient. 

Facts  and  circumstances  must  be  shown  to  establish  the  age  of  the  docu- 
ment as  thirty  years  or  more,  in  order  to  make  it  admissible  under  the  rule. 
Generally  it  is  not  enough  that  the  document  purports  to  be  ancient. 
Ancient  documents  are  most  frequently  employed  to  establish  boundaries  both 
of  public  and  of  private  lands,  also  to  identify  lines  as  by  an  ancient  deed. 

If  an  ancient  document  be  not  accounted  for,  so  that  some  proof  of  its 
genuineness  is  necessary,  or  if  the  document,  while  not  ancient,  be  yet  suffi- 
ciently old  to  make  such  proof  difficult,  very  slight  proof  will  be  sufficient  in 
comparison  with  what  will  be  required  of  very  recent  transactions. l 

In  some  states  old  documents  containing  information  as  to  the  location 
of  private  boundaries,  although  not  constituting  deeds  of  ownership,  are 
admissible. a 

The  words  "  ancient  documents"  have  been  held  to  include  deeds,  maps, 
wills,  leases,  bonds,  powers  of  attorney,  receipts,  letters,  and  in  fact  almost 
any  document  which  from  its  nature  is  evidence  of  the  matter  of  fact  in  issue 
in  any  particular  case.  '  One  of  the  most  frequent  instances  of  ancient  docu- 
ments is  that  of  maps  and  surveys  introduced  for  the  purpose  of  showing" 
boundary-lines  of  the  government  subdivisions  and  of  private  estates.  In  such 
cases  it  may  include  the  map  or  plat  of  the  survey,  the  field-book  or  notes 
kept  by  the  surveyor  in  making  the  survey,  or  letters  and  reports  made  by  the 
surveyor  upon  the  subject  of  the  survey.3 

An  old  map  which  is  well  known  and  accepted  as  such  has  been  held 
admissible  in  evidence  in  an  action  involving  boundary-lines.4  Where  a 
description  contains  the  phrase  "  to  and  along  the  line,"  the  true  location  of 
of  which  line  is  uncertain,  maps  in  common  use  at  the  time  are  admissible  to 
show  the  location  and  name  of  the  line.5  An  old  map  was  admitted  to  show 

12  Amer.  &    Eng.  Ency.   Law  (zd  ed.)  3  2  Amer.  &  Eng.  Ency.   Law  (2d  ed.) 

330-332.  323.     But  see  Boston  Water-power  Co.  v. 

2  Hathaway    v.   Evans,   113  Mass.   264;  Hanlon,  132  Mass.  483. 

Morris  z/.  Cullanan,  105  Mass.  129;  Spar-  *  Taylor    v.   McConigle,    52    Pac.   Rep. 

hawk    v.    Bullard    (Mass.),    i    Mete.    95;  159. 

Dobson  v.   Finley  *(N.    C.),  8  Jones  495,  5  Hanlon  v.  Union  Pac.  Ry.  Co.  (Neb.), 

— all  cases  of  recitals  in  old  deeds.  58  N.   W.  Rep.  590. 


433  DETERMINATION  AND    PROOF  OF  BOUNDARIES.         §625. 

the  boundaries  of  a  tidal  creek,  since  filled  in,  in  a  suit  between  private  parties. l 
Streams  mentioned  in  an  old  survey,  no  longer  capable  of  being  located  by  the 
names  given,  may  be  identified  from  maps  of  contemporaneous  surveys.2 

624.  Maps  and  Documents  Not  Received  as  Evidence. — Deeds  and  maps 
which  may  be  used  by  a  surveyor  to  assist  him  in  refreshing  his  memory  and 
as  data  from  which  to  testify,  and  which  when  sworn  to  as  correct  are  admissible 
as  testimony,  should  be  distinguished  from  maps  and  plans  which  may  be 
introduced  directly  as  evidence  of  what  they  contain.     In  the  one  case  it  is  the 
testimony  of  the  surveyor  which  is  received,  based  upon  or  strengthened  by 
the  map,  while  in  the  other  the  map  alone  is  received  for  what  it  may  contain.3 

An  unofficial  plat  made  by  a  surveyor  may  be  admitted  in  evidence  to 
explain  and  illustrate  his  testimony  in  regard  to  the  surveys  and  measurements 
he  has  made.4  It  may  be  admitted  only  in  connection  with  his  testimony  and 
not  as  independent  evidence.5 

It  is  proper  to  permit  the  jury,  when  it  retires,  to  take  with  it  the  report  of 
the  surveyor  and  a  map  of  the  premises  attached  to  the  report,  to  which  refer- 
ences had  been  made  to  explain  testimony.6 

A  county  map,  filed  in  the  state  comptroller's  office,  when  it  is  not  shown 
when,  and  by  whom,  and  for  what  purpose  it  was  made  or  how  long  it  had 
been  on  the  public  files,  and  where  there  was  no  statute  which  required  the 
comptroller  to  cause  such  maps  to  be  made  and  filed  in  his  office,  will  not  be 
received  as  evidence.7  A  map  recently  made  for  the  use  of  the  assessors  of 
the  town,  but  not  verified  as  to  its  correctness,  is  not  admissible  as  evidence 
to  prove  the  location  of  boundary-lines.8  In  California  a  plat  of  a  survey 
made  by  a  county  surveyor  is  not  admissible  as  evidence  unless  it  is  made  out 
and  certified  to  as  provided  by  statute.9 

625.  Evidence  of  Declarations  by  Deceased  Persons.* — The  declarations 
of  a  deceased  person  in  relation  to  the  location  of  a  particular    corner   or 
marked  boundary-line  dividing  his  lands  from  those  of  another  are  admissible 
in  evidence  in  a  trial  to  determine  the  boundaries  between  subsequent  owners 
or  claimants.10     The  declarations  should  not  be  subject  to  suspicion  of  bias 

!Drury  v.  Midland  R.  Co.,  127   Mass.  5Tinner  v.  United  States  (C.  C.  A.),  66 

571.     See  also  Adams    v.   Stanyan,  24  N.  Fed.    Rep.    280-289;     McVey    v.    Durkin 

H.  405.  (Pa.)-    20  Atl.    Rep.    541    [1890];    Taylor 

2  Kain    v.    Young    (W.    Va.),  24    S.    E.  v.   McConigle   (Cal.),   52    Pac.    Rep.    159 

Rep.  554;  Taylor  v.  McConigle,  52   Pac.  [1898]. 

Rep.  159;  Hanlon  v.  Union  Pac.  Ry.  Co.  6  Wardlow  v.  Harmon  (Tex.),  45  S.  W. 

(Neb.),  53  N.  W.  Rep.  590.  Rep.  828. 

,     As  to  how  far  the  history  of  a  county  7  Donohue  v.  Whitney  (N.  Y.  App .),  30 

or  community  is  admissible  as  evidence  N.  E.  Rep.  848. 

to  establish  boundaries  or  title  to  lands  in  8  Donohue  v.  Whitney  (N.  Y.  App.),  30 

dispute,  see  Roe  v.  Strong  (N.  Y.),  14  N.  N.  E.  Rep.  848. 

E.  Rep.  294  [1888].  9Doherty     v.     Thayer,    31     Cal.     140 

'Wardlow  v.  Harmon  (Tex.),  45  S.  W.  [1866]. 

Rep.  828  [1898!.  10Halstead  v.    Mullen,    93    N.    C.    252 

4Goldsborough  z/.  Pidduck  (la.),  54  N.  [1885];  Smith  v.  Headeick,  93  N.  C.  210. 
W.  Rep.  431. 

*  See  Sec.  620,  supra. 


§625.  OPERATIONS  PRELIMINARY   TO    CONSTRUCTION.  434 

from  interest  of  the  deceased  owner,  and  a  mere  general  statement  or  'claim 
that  certain  land  was  in  his  boundary,  or  statements  as  to  where  the  lines 
would  run,  or  that  he  owned  the  land,  without  referring  to  any  corners  or 
marked  lines,  is  inadmissible.1  A  witness  cannot  testify  as  to  statements 
made  to  him  as  to  the  location  of  boundaries  by  persons  who  are  alive  and 
can  testify.2 

It  is  not  necessary  to  show  the  knowledge  or  means  of  information  of  such 
deceased  person  in  order  to  make  his  declarations  admissible.  If  such 
knowledge  or  means  of  information  are  not  shown,  it  only  goes  against  the 
weight  of  evidence  and  does  not  determine  its  admissibility.3 

Declarations  of  the  plaintiff's  grantors,  since  deceased,  made  when  in 
possession  of  a  lot,  as  to  its  location  and  as  to  what  the  true  line  of  a 
street  was,  are  admissible  in  evidence.4  Declarations  of  a  borough  regulator 
who  had  run  the  lines  of  lots  in  question  are  admissible  to  prove  where  the 
dividing-line  was  actually  located,5  as  are  the  declarations  of  the  common 
grantor,  made  while  the  owner  of  both  tracts,  as  to  the  location  of  the  lines 
between  them,6  or  declarations  made  at  the  time  he  sold  the  land  to  subse- 
quent purchasers.7  A  sheriff  cannot  testify  as  to  which  one  of  two  maps,  that 
equally  answer  his  description,  he  referred  to  in  a  deed  executed  by  him,  the 
land  being  incapable  of  identification.8 

Parol  evidence  that  the  grantor,  soon  after  the  conveyance,  ran  out  the 
line  and  marked  the  trees  on  it,  and  that  the  grantees  cut  trees  up  to 
such  line,  is  admissible  to  aid  in  the  construction  of  the  deed.9  Evidence 
that  corner  trees  were  marked  on  the  boundaries  of  the  land  in  dispute,  and 
that,  when  one  marked  tree  had  disappeared,  witness  marked  another  to  show 
where  it  had  stood,  was  competent. 10 

The  declarations  should  have  been  made  when  the  deceased  person  was 
•pointing  out  or  marking  the  boundaries  or  discharging  some  duty  relating 
thereto. n  A  witness  cannot  testify  to  what  a  deceased  surveyor  told  him  as 
to  where  he  had  located  a  certificate.12 

The  fact  that  the  deceased  person  was  a  son-in-law  of  the  former  owner 
and  carried  the  chain  when  such  owner  had  some  lines  run,  but  the  lines  were 
not  shown  to  be  the  lines  in  question,  will  not  render  his  declarations 
admissible  as  evidence  in  regard  to  the  boundaries.13  • 

1  High    v.   Pancake  (W.  Va.),  26  S.  E.        Rep.  546  [1888]. 

Rep.  536.  8  Cadwaller    v.    Nash    (Cal).,    14    Pac. 

2  Smith  v.  Cornett  (Ky.),  38  S.  W.  Rep.       Rep.  385. 

689.  9  Clark  v,  Munyan,  22  Pick.  410  [1839]. 

3  Payne  v.  Crawford  (Ala.),  14  So.  Rep.  10  Lewis  v.   Roper  L.   Co.  (N.  C.),  18  S. 
854-  E.  Rep.  52. 

4  Elgin  v.  Beckwith  (111.),  10  N.  E.  Rep.  "Clay  Co.   L.  &  C.   Co.   v.    Montague 
558  [1887].  Co.  (Tex.),  28  S.  W.  Rep.  704. 

3  Haupt    v.    Haupt,    15    Atl.    Rep.    700  12  Hill  v.  Smith  (Tex.  Civ.   App.),  25  S. 

[1888].  W,  Rep.  1079. 

6  Sharp  v.  Blankenship  (Cal.),  21   Pac.  n  Fry   v.  Stowers  (Va.),  22  S.    E.  Rep. 
Rep.  842.  500. 

7  Austin    v.    Andrews    (Cal.),    16    Pac. 


435  DETERMINATION  AND   PROOF  OF  BOUNDARIES.          §627. 

626.  Person  Making  Declarations  must  have  had   Peculiar   Means  of 
Knowing-  Boundaries.* — Declarations  as  to  boundaries  made  by  a  grantor, 
since  deceased,  while  on  the  land  and  in  possession  of  it  may  be  introduced. 
The  declarations  of  any  deceased  person  as  to  a  corner  tree  or  boundary  are 
admissible  if  it  be  shown  that  he  had  peculiar  means  of  knowledge.1     What  a 
former  owner  of  an  older  survey  who  was  one  of  the  original  surveyors  of  a 
tract,  and  who  helped  to  locate  the   corners,  and  who   has   since   died,   has 
pointed  out  to  witnesses  as  the  corner,  is  admissible.2 

Declarations  of  a  deceased  surveyor  made  while  he  was  surveying  a  differ- 
ent tract  of  land,  the  survey  of  which  was  not  originally  made  by  himself  and 
of  which  he  had  no  previous  knowledge,  are  not  admissible  to  identify  the 
corners  and  lines  of  the  survey  in  dispute.3  Yet  when  a  deceased  surveyor 
has  surveyed  another  tract  of  land  and  in  so  doing  has  located  the  line  in 
dispute  and  the  tract  in  question,  his  declarations  in  regard  thereto  are 
admissible  whether  such  other  surveys  are  legal  or  not.4  Admission  of  testi- 
mony of  a  surveyor  as  to  a  boundary  cannot  be  held  error  though  in  running" 
the  line  he  began  his  survey  outside  the  land  in  controversy,  the  circumstances 
and  facts  relative  to  the  lines  and  adjoining  lots  not  appearing.5 

Whatever  a  surveyor  knows  or  learns  in  regard  to  the  boundary  while 
making  a  survey  he  may  testify  to  in  a  trial  to  determine  the  boundary.  He 
may  testify  that  he  ran  the  line,  that  a  certain  map  was  made  of  the  survey, 
and  that  the  map  is  correct.6  He  may  testify  that  he  found  trees  of  the  same 
species  as  were  designated  in  the  description  at  about  the  proper  course  and 
distance  from  the  corners,  and  explain  how  there  might  be  a  slight  discrepancy 
between  the  bearing  and  the  trees  as  shown  in  the  original  surveys  and  as  he 
found  them  on  the  grant,  owing  to  the  variation  of  the  needle.7 

The  surveyor  should  not  be  interested.8  A  statutory  law  which  provides, 
that  no  survey  or  resurvey  thereafter  made  by  any  person  except  the  county 
surveyor  shall  be  considered  legal  evidence,  does  not  render  any  surveyor 
incompetent  to  testify  as  to  a  survey  or  the  correctness  of  a  plat  thereof  made 
by  him.9 

627.  Opinions  of  Witnesses  Not  Admissible. — The  opinions,  speculations, 
or  conjectures  of  a  witness  as  to  the  location  of  lines  and  monuments  cannot 
be  admitted  in  evidence  to  explain  a  description  in  a  patent  or  deed.     Wit- 
nesses can  testify  only  as  to  the  existence  of  facts  and  of  condition  on  the 

l¥ry  v.   Stowers   (Va.),  22  S.   E.  Rep.  «Gunn  v.  Harriss  (Ga.),   14  S.  E.  Rep. 

500.  593;  State  v.  Hoff  (Tex.),  29  S.  W.  Rep. 

2  Beal  v.  Asberry  (Tex.),  20  S.  W.  Rep.  672. 

115.  7  Angle  v.  Young  (Tex.),  25  S.  W.  Rep. 

'Cable  v.  Jackson  (Tex.),  42  S.  W.  Rep.  798;  Busse  v.  Covington  (Ky.),  38  S.  W. 

136.  Rep.  865. 

*Cottingham  v.   Seward   (Tex.),    25  S.  8  Cross  v.  Tyrone  Min.  &  Manfg.  Co., 

W.  Rep.  797.  121  Pa.  St.  390. 

6Martyn  v.   Curtis  (Vt.),  35  All.  Rep.  9  Hopper  v.   Hickman  (Mo.),  46  S.  W. 

333.  Rep.  973  [1898]. 

*  Set  Sec.  620,  supra. 


§628.  OPERATIONS  PRELIMINARY    TO    CONSTRUCTION.  436 

ground  to  explain  what  is  called  for  in  the  writing.  The  lines  described  must 
be  located  according  to  the  description  in  the  instrument.1  It  is  wrong  to 
admit  testimony  as  to  what  a  witness  supposed,  or  what  was  generally  supposed, 
to  be  the  boundary-line,  though  the  witness  had  been  long  and  intimately 
acquainted  with  the  premises;2  although,  in  an  effort  to  establish  adverse 
possession,  it  is  admissible  to  ask  a  witness  whether  it  was  generally  known  in 
the  vicinity  of  the  land  that  defendant's  grantor  claimed  title.3  The  state- 
ments of  a  witness  that  a  ditch  was  acquiesced  in  as  the  dividing-line,  and 
was  tacitly  consented  to  by  all  parties  for  the  reason  that  no  one  ever 
obstructed  or  put  a  fence  in  the  ditch,  are  not  admissible,  being  the  witness's 
conclusion.4 

Where  a  surveyor,  appointed,  in  an  action  of  trespass  to  try  title,  to  survey 
the  land  and  determine  the  true  location  of  a  boundary-line  that  is  in  dispute, 
makes  a  report  in  which  he  attempts  to  determine  questions  of  fact  and  to 
gather  up  and  report  evidence,  it  is  proper  to  quash  his  report.5 

628.  Surveyor's  Opinion  as  Evidence  when  Based  npon  Knowledge  of 
Facts. — Abstract  opinion  is  not  evidence,  but  a  surveyor,  or  any  other  person 
conversant  in  the  subject  may  state  facts,  and  his  opinion  on  those  facts,  to 
enable  the  jury  to  form  a  correct  judgment  of  the  matter  in  dispute.  This  is 
information,  on  a  question  of  science,  which  others  unacquainted  with  the 
subject  must  necessarily  lack.  A  surveyor  who  has  not  seen  the  tract  of  land 
may  after  hearing  the  evidence  of  others  be  called  to  prove  on  his  oath  the 
general  condition  or  effect  of  the  case  and  its  probable  result.6  The  conclu- 
sions of  a  surveyor  (who  is  properly  instructed)  derived  from  his  knowledge 
of  lines  and  corners  found  on  the  ground,  may  always  be  given.  His  opinion 
upon  such  questions  regarding  the  location  of  boundaries  is  admissible,  it 
being  a  conclusion  of  fact  and  not  a  legal  conclusion.7 

Where  in  a  case  a  surveyor  who  was  acquainted  with  the  surveys  in  ques- 
tion was  not  permitted  to  give  his  conclusions  as  to  the  location  of  a 
neighboring  tract  because  it  was  somehow  supposed  he  could  not  be  allowed 
to  give  his  opinion  as  to  its  location,  and  this  for  the  singular  reason  that  it 
would  ue  a  legal  conclusion,  it  was  held  that  the  conclusion  of  a  surveyor 
derived  from  his  knowledge  of  lines  and  corners  found  on  the  ground  was 
certainly  one  of  fact  and  not  of  law.  The  question  regarding  the  location 
is  always  one  of  fact,  hence  one  about  which  a  surveyor  who  is  properly 
instructed  concerning  the  facts  may  always  give  his  opinion.8 

1  Tognazzini  v.  Morganti  (Cal.),  23  Pac.  6  Peak  on  Evidence  137;  Lessee  v.  Ca- 

Rep.  138.  ruthers,  3  Yeates  527  [1803]. 

3  Beecher  v.  Galvin  (Mich.),  39  N.  W.  7  Jackson  v.   Lambert,   121  Pa.  St.   190 

Rep.  469  [1889].  [1888];  N.  Coal  Co.  v.  Clement,  95  Pa.  St. 

'Woods   v.    Moulevatto    C.    &   T.    Co.  126 

(Ala.),  3  So.  Rep.  475  [1888].  8  Farr   v.   Swan,    2    Pa.    245;  Northum- 

*  Beecher  v.   Galvin   (Mich.),   39  N  W.  berland  Coal  Co.  v.  Clement,  95  Pa.   126; 

Rep.  469.  Jackson    v.    Lambert,     121     Pa.     St.    190 

6  Westbrook  v.   Guderian  (Tex.),  22  S.  [1888];    Knox    v.    Clark,    123    Mass.    216 

W.  Rep.  59-  [1877]. 


437  DETERMINATION  AND   PROOF  OF  BOUNDARIES.          §630. 

However,  the  question  as  to  how  a  deed  should  be  construed  with  refer- 
ence to  a  proper  location  of  it,  or  what  was  the  proper  location  of  a  particular 
deed  having  reference  to  other  deeds  in  the  case,  is  a  question  of  law,  for  the 
court ;  and  it  is  not  competent  for  a  surveyor  to  give  an  opinion  concerning 
such  a  question.1 

Testimony  of  the  surveyor  who  located  the  line  has  been  received  to 
establish  an  agreement  between  the  parties  as  to  the  location  of  a  boundary,* 
and  to  disprove  such  an  agreement ; 3  or  to  prove  that  a  certain  line  was 
pointed  out.4 

Where  the  field-notes  of  a  survey  are  inconsistent,  the  true  description  of 
the  survey  may  be  shown  by  the  evidence  of  the  surveyor  who  made  it.5  A 
surveyor's  declarations  are  not  admissible  to  contradict  his  official  report  on 
which  the  commonwealth  has  issued  a  grant.6 

629.  Person  must  Not  have  had  an  Interest  in  Making  such  Declara- 
tions.— An  owner  of  land  who  is  not  a  surveyor  may  not  testify  in  a  suit 
between  other  parties  as  to  the  meaning  of  boundary-lines  on  the  map  of  the 
land,  put  there  by  his  direction  when  the  map  was  made,  the  surveyor  being 
dead,  since  such  lines  are  the  declarations  of  an  interested  party.7 

Declarations  of  a  deceased  owner  made  to  the  son  while  hunting  on  the 
land,  a  long  while  before  the  controversy  arose,  are  competent  to  prove  the 
location  of  a  boundary  which  was  pointed  out  when  the  declarations  were 
made. 8  Declarations  by  a  person  after  he  had  ceased  to  be  an  owner  are  not 
admissible  unless  they  are  declarations  of  a  deceased  person  as  to  the  location 
of  ancient  boundaries  made  on  the  ground  before  the  controversy  arose,  and 
unless  such  person  is  shown  to  have  had  knowledge  but  no  interest  in  the 
case.9  A  declaration  of  a  grantor  as  to  boundaries  is  not  admissible  in  favor 
of  his  grantee  and  as  against  persons  not  claiming  under  the  grantor.10 

The  declarations  of  a  testator  explaining  the  terms  of  his  will  setting  forth 
the  boundaries,  where  both  parties  claim  title  under  such  will,  are  admissible.11 

630.  Starting-point  in  Making  a  Survey. — When  two  deeds  describe  land 
as  starting  from  points  directly  opposite,  the  distances  between  the  calls,  the 
monuments,  and  lengths  of  the  lines  run  being  exactly  the  same,  the  presump- 
tion will  be  conclusive  that  both  surveys  are  of  the  same  line,  and  that  it  is 
the  true  boundary-line. 12 

vKelso  v.   Steiger  (Md.),  24  Atl.   Rep.  49. 

18.  8Robbins   z>.  Dewhurst  (C.  C.  A.),    68 

"  2  Scott  v.  Means  &  R.  I.  Co.  (Ky.),  19  Fed.  Rep.  336. 

S.  W.  Rep.  189.  9  Martyn  v.  Curtis   (Vt.),  35  Atl.  Rep. 

8  Archer  v.  Helm  (Miss.),   12  So.   Rep.  333;  Wood  v.  Willard,  37  Vt.  377. 

702.  10  Taylors.  McConigle  (Cal.),  52  Pac. 

4  Scott  v.  Means  &  R.  I.  Co.,  supra.  Rep.  159. 

5Schley  v.   Blum  (Tex.  Civ.  App.),  22  "Franklin    v.  Woolridge   (Ky.),  45    S. 

S.  W.  Rep.  264.  W.  Rep.  98  [1898]. 

6Reusens    v.    Lawson   (Va.),    21  S.  E.  12Wise  v.  Burton  (Cal.),  14    Pac.  Rep. 

Rep.  347.  678,  683  [1887]. 

7  State  v.  Croker  (S.  C.),  27  S.  E.  Rep. 


§631.  OPERATIONS  PRELIMINARY    TO    CONSTRUCTION.  43& 

In  determining  the  boundaries  of  a  survey,  the  beginning  corner  as  given 
in  the  field-notes  is  of  no  more  dignity  or  importance  than  any  other  corner 
found  upon  the  ground.1  The  initial  point  and  base-line  of  a  survey  may  not 
necessarily  be  more  controlling  or  even  so  much  so  as  other  points  in  the 
survey  which  are  ascertained. a  Evidence  that  in  making  the  survey  on  the 
ground  the  surveyor  started  at  the  northeast  corner  is  not  contradictory  of  the 
field-notes,  which  in  describing  it  commence  at  another  corner.3 

An  ordinance  declaring  that  certain  stakes  are  the  initial  points  of  a  survey 
already  made,  and  which  attempts  to  locate  lines  therein,  is  void.4 

631.  Evidence  to  Establish  Starting-point  of  Survey. — Frequently  the 
starting-point  of  the  survey  is  not  described  sufficiently  to  be  conclusive  as  to- 
what  is  the  exact  location,  and  in  such  a  case  the  determination  of  the  point 
of  beginning  may  depend  upon  the  evidence  of  old  residents  or  of  surveyors- 
who  have  made  the  earlier  surveys.5 

Where  several  old  residents  had  testified  to  having  seen  a  certain  pine-tree 
with  an  "X"  marked  upon  it,  and  to  having  heard  such  tree  spoken  of  as  a 
corner  of  a  certain  tract  of  land  and  as  a  corner  from  which  surveys  were 
commonly  run,  and  had  testified  that  such  trees  were  rare  in  the  vicinity,  and 
one  surveyor  testified  to  having  run  surveys  from  the  same  tree,  it  was  held 
that  the  evidence  showed  that  such  tree  was  a  well-known  and  easily  ascer- 
tained point  at  a  time  long  since  passed.6 

'  When,  however,  such  a  tree  was  pointed  out  by  an  aged  resident  as  a 
corner  of  a  certain  survey,  and  a  survey  run  out  from  that  tree  as  a  starting- 
point  failed  to  locate  the  corners  as  described  in  the  description,  it  was  held 
that  the  evidence  was  insufficient  to  locate  the  beginning-point  and  was  there- 
tore  insufficient  to  locate  the  line.7 

If,  by  commencing  at  the  point  specified  and  running  either  as  claimed 
by  plaintiff  or  by  defendant,  some  of  the  distances,  where  no  monuments  were 
specified  in  the  description,  must  be  disregarded  in  order  to  return  to  the 
point  started  from,  a  latent  ambiguity  arises  to  solve  which  oral  testimony  will 
be  admissible.8 

Where  a  witness — a  civil  engineer — testified  to  the  location  of  the  southeast 
corner  of  a  block  (the  facts  being  disputed  as  to  the  place  where  that  corner 
was  originally  established)  as  established  by  him,  by  measuring  from  original 
stakes  still  in  existence,  and  that  he  measured  from  such  stakes  on  the  west 

1  Cox  v.  Finks  (Tex.),  41  S.  W.  Rep.  95;  been    tampered    with    or    removed,    see 

,  Miles  v.  Sherwood  (Tex.),  19  S.  W.  Rep.  Woods  v.  West  (Neb.),  56  N.  W.  Rep.  30, 

853.  5  Hartsell  v.  Coleman  (N.  C.),  21  S.  E. 

2Orena    v.    Santa    Barbara    (Cal.),  28  Rep.  392. 

Pac.  Rep    268.  6  Riseden    v.   Harrison  (Tenn.),    42  S. 

3Lumpkin  v.  Draper    (Tex.),  18  S.  W.  W.  Rep.  884. 

Rep.  1058.  7  Holmes  v.  Sapphire  Val.  Co.  (N.  C.)r 

*Orena    v.    Santa    Barbara    (Cal.),    28  28  S.  E.  Rep.  545;  Graves  v.  Texas,  etc. ,. 

Pac.  Rep.  268.  R.  Co.  (Tex.),  31  S.  W.  Rep.  87. 

As  to   the  best  manner  of  locating  an  8Rugg  v.  Ward  (Vt.),  23  Atl.  Rep.  726, 
original    government   corner   which  has 


439  DETERMINATION  AND    PROOF  OF  BOUNDARIES.          §  632. 

and  south  exterior  boundaries  of  the  block,  and  by  that  means  established  the 
.southeast  corner,  and  from  the  point  so  established  made  his  final  measure- 
ments as  testified  to  on  the  trial,  this  was  held  to  be  a  proper  method  of 
establishing  such  lost  corner.1 

In  Wisconsin  the  unvarying  rule  to  be  followed  in  establishing  a  lost 
corner  is  to  start  at  the  nearest  known  point  on  one  side  of  the  lost  corner 
on  the  line  on  which  it  was  originally  established;  then  to  measure  to  the 
nearest  known  corner  on  the  other  side,  on  the  same  line;  then,  if  the  length 
of  the  line  is  in  excess  of  that  called  for  by  the  original  survey,  to  divide  it 
between  the  tracts  connecting  such  two  known  points,  in  proportion  to  the 
lengths  of  the  boundaries  of  such  tracts  on  such  line  as  given  in  such  survey.2 
However,  in  locating  a  northwest  corner  of  a  section  of  which  the  northeast 
corner  can  be  located,  it  was  held  wrong  to  start  from  a  subsection  corner  in 
an  adjoining  township  subdivided  under  a  different  survey  and  requiring  the 
surveyor  to  run  a  mile  and  a  half  to  connect  the  subdivision  surveys  of  the 
two  townships.  He  should  instead  merely  have  followed  the  calls  of  the 
division  survey  of  the  township  in  which  the  section  is  located.3 

When  a  description  designates  the  beginning  corner  as  a  wild  China-tree 
and  none  of  the  other  corners  or  lines  has  been  marked  upon  the  ground,  it 
is  error  for  the  court  to  instruct  that  the  beginning  corner  is  of  no  higher 
dignity  or  importance  than  any  other  corner  of  the  survey,  since  the  true 
location  of  the  beginning  corner  is  controlling.4  On  the  other  hand,  when 
the  surveyor  abandons  a  call  in  the  deed  for  the  beginning  corner  which  is- 
to  him  clearly  wrong,  and  adopts  a  new  call  by  which  a  substantial  compli- 
ance is  made  with  the  other  calls  in  the  deed,  the  land  conveyed  by  the  field- 
notes  of  the  surveyor  with  such  changes  will  hold,  especially  when  the 
question  is  not  raised  for  many  years  thereafter.5 

In  locating  the  inner  corner  (center)  of  quarter-sections  it  has  been  held 
that  it  should  be  placed  at  a  point  midway  between  two  section-lines  rather 
than  at  a  point  1320  feet  from  one  of  the  corners.6  Another  case  holds  that 
the  interior  quarter-section  corners  should  be  located  by  intersection,  i.e.,  by 
running  lines  from  the  quarter  corner  on  the  east  to  the  quarter  corner  on  the 
west,  and  from  the  quarter  corner  on  the  north  to  the  quarter  corner  on  the 
south.7 

632.  Survey  made  by  Direct  or  Reverse  Calls, — Sometimes  it  is  held 
that,  in  order  to  locate  a  monument  or  boundary  of  land  which  was  run  by 
courses  and  distances,  the  footsteps  of  the  surveyor  should  be  followed  instead 

1  Lewis  v.  Prien  (Wis.),  73  N.  W.  Rep.       366. 

654   [1897].  6  Blackburn   v.    Norman   (Tex.),  30  S. 

2  Lewis  v.  Prien  (Wis.),  73  N.  W.  Rep.       W.  Rep.  718. 

654  [1897].  «Packscher  v.  Fuller  (Wash.),  33  Pac. 

•O'Hara    v.    O'Brien    (Cal.),    40    Pac.  Rep.  875. 

Rep.  423.  7  Gerke  v,  Lucas  (la.),  60  N.  W.  Rep. 

4  Ayers  v.  Beaty  (Tex.),  24  S.  W.  Rep.  538. 


§633-          OPERATIONS  PRELIMINARY    TO    CONSTRUCTION.  440 

of  taking  a  reverse  course.1  However,  the  calls  of  the  survey  may  be  reversed 
under  a  recognized  rule  that  the  beginning  corner  of  a  survey  is  of  no  higher 
dignity  than  any  other  corner,  if  by  so  doing  it  is  found  that  the  discrepancy 
in  the  area  of  the  survey  is  lessened,  and  that  the  line  falls  along  the  line  of 
the  alleged  conflicting  survey.2 

The  fact  that  the  lines  of  the  survey  as  laid  down  in  the  field-notes  include 
more  land  than  the  state  was  authorized  to  grant  for  the  purpose  intended 
does  not  furnish  any  reason  for  reversing  the  calls  of  the  survey  and  altering 
one  of  the  lines  so  as  to  diminish  the  quantity  of  land.  Especially  is  this 
true  when  such  a  change  would  result  in  extending  the  titles  of  other  persons 
who  had  paid  for  their  land  and  had  held  it  for  many  years.3 

633.  Methods  of  Closing  a  Survey  in  Certain  Cases  of  Error. — To  make 
a  survey  close,  when  all  the  other  lines  and  corners  disclose  no  error  or  incon- 
sistency, the  course  and  distance  of  the  last  line  should  be  rejected  as 
erroneous,  and  effect  be  given  to  the  more  certain  designation,  '  *  thence  to 
the  place  of  beginning."  4  Where  the  last  call  in  the  boundary  of  a  patent  is 
"  north  20  poles,  to  the  beginning,"  the  line  must  be  run  to  the  beginning 
though  the  course  is  N.  5°  10"  E. ,  and  the  distance  is  141  poles,  as  the  call 
to  'the  beginning  must  prevail  regardless  of  course  and  distance.5*  The 
courses  in  a  deed  must  yield  to  distances  when  such  was  the  evident  intention 
of  the  parties.6 

Where  land  conveyed  forms  a  triangle,  and  two  sides  and  the  acreage  are 
given,  a  straight  line  from  point  to  point  will  be  adopted  as  the  third  side, 
when  the  boundary  thus  formed  will  inclose  the  number  of  acres  called  for.7 

So,  also,  when  a  deed  describes  land  as  containing  a  certain  amount  and 
gives  its  north,  south,  and  west  boundaries;  an  eastern  boundary  added 
thereto,  which  is  shown  to  be  erroneous,  may  be  rejected.8  If  the  east  and 
west  lines  of  a  part  of  a  lot  correspond  with  each  other  within  a  fraction  of  a 
foot  and  with  the  known  and  fixed  boundaries  called  for  by  all  prior  deeds, 
the  identity  of  the  premises  is  not  affected  by  the  fact  that  the  north  and  south 
lines  are  inconsistent  and  one  must,  and  both  may,  be  wrong.9 

If  there  be  an  obvious  mistake  in  the  description  and  the  intention  of  the 
parties  can  be  determined  from  such  description,  the  court  will  interpret  the 

1  Blackburn    v.  Nelson  (Cal.),  34  Pac.       S.  W.  Rep.  348  [1897]. 

Rep.  775;  Duncan  v.  Hall  (N.  C.),  23  S.  6  Scott  v    Weisburg   (Tex.  Civ.  App.), 

E.  Rep.  362.  21  S.  W.  Rep.  769. 

2  Miles    v.  Sherwood  (Tex.),  19   S.  W.  7Hostetter    v.    Los    Angeles    Ry.    Co. 
Rep.  853;  Swenson  v.  Willsford   (Tex.),  (Cal.),  41   Pac.   Rep.  330;  Wells  v.  Hed- 
19  S.  W.  Rep.  613.  denberg  (Tex.),  30  S.  W.  Rep.  702. 

3  White    v.    Bum    (C.    C.  A.),  79   Fed.  8Scates  v.  Henderson  (S.  C.),  22  S.   E. 
Rep.  271.  Rep.   724;    Ray  v.   Pease  (Ga.),  22  S.  E. 

4  Owings  v.  Freeman  (Minn.),  51  N.  W.  Rep.  190. 

Rep.  476  [1892];  Fullam  v.  Foster  (Vt.),  9  Blumenthal  Co.  z/.  Broock  (Mo.  Sup.), 

59  Atl.  Rep.  484.  29  S.  W.  Rep.  836. 

5Sirapkins'  Adm'r   v.  Wells  (Ky.),   42 

*  See  Sees.  547-550,  supra. 


44 I  DETERMINATION  AND    PROOF  OF  BOUNDARIES.          §633. 

deed  so  as  to  give  effect  to  such  intention.  An  impossible  or  senseless  course 
given  in  a  deed  will  be  disregarded  if  the  other  calls  of  the  description  are 
sufficient  to  identify  the  land.1  If  certain  calls  are  given  and  one  of  them  be 
such  that  if  followed  no  land  whatever  would  be  described,  the  description 
will  not  be  insufficient,  but  the  manifest  intention  of  the  parties  will  prevail.2 
However  where  land  was  described  as  "  Commencing  at  a  point  in  the 
easterly  line  of  said  premises,  3^  inches  southerly  from  the  northerly  line,  and 
running  thence  westerly  to  a  point  in  the  said  northerly  line  distant  19  feet 
westerly  from  the  easterly  line  thereof, ' '  it  was  held  to  be  a  description  of  a 
straight  line  only,  by  which  possession  could  not  be  delivered.3 

If  land  be  described  as  to  its  boundaries  on  three  sides,  the  misnomer  of 
the  street  on  the  fourth  side  will  be  immaterial.4  A  mistake  which  designates 
the  starting-point  as  the  northwest  corner  of  certain  streets  when  the  plans 
and  the  description  show  that  the  southwest  corner  was  intended  will  not 
affect  the  validity  of  the  deed.5 

When,  in  order  to  make  two  surveys  connect  as  required  by  one  of  the 
calls  of  the  description,  it  would  change  the  location  of  three  out  of  four 
surveys,  and  would  disregard  a  corner  marked  by  bearing-trees,  and  would 
require  that  the  north  and  south  lines  of  the  surveys  be  increased  10  per  cent., 
it  was  held  that,  rather  than  make  such  marked  changes  in  other  surveys,  the 
call  for  the  surveys  to  connect  should  be  disregarded.6 

Under  a  description  as  that  lot  situated  on  a  certain  corner  of  two 
streets,  having  a  front  on  one  of  108  feet  "  more  or  less,"  and  running  back 
on  the  other  street  126  feet  "  more  or  less,"  "  constituting  the  only  realty  of 
said  estate, ' '  it  was  held  that,  though  intestate  (grantor)  died  seized  of  a  lot 
1 60  by  126  feet,  situate  on  said  corner,  it  did  not  all  pass  by  the  deed.7 

Where  three  sides  and  the  number  of  acres  are  known  and  it  is  disputed 
whether  the  fourth  side  is  a  straight  or  a  meandering  line,  the  straight  line  will 
be  adopted  when  the  tract  thus  inclosed  contains  the  niimber  of  acres  called 
for,  and  when  the  acreage  would  be  largely  increased  if  the  meandering  line 
were  adopted.8 

If  all  the  calls  made  by  the  locating  surveyor  cannot  be  strictly 
observed,  as  few  should  be  disregarded  as  possible.  If  the  beginning  point 
be  established,  lines  should  be  run  in  both  directions  as  far  as  possible,  and 
the  gap  closed  as  seems  most  consistent  with  all  the  calls.9  Incidental  calls, 
noted  in  field-notes  as  such  in  passing,  unless  specially  designated  in  such 

1  Brose  v.   Boise  City  P.   Co.  (la.),  51  'Texas   Town-site    Co.    v.    Hunnicutt 

Pac.  Rep.  753  [1897].  (Tex.),  31  S.  W.  Rep.  520. 

'Hobanz/.  Cable  (Mich.),  60  N.  W.  Rep.  7  Bromberg   v.    Yukers    (Ala.),   19   So. 

466.  Rep.  49. 

8  Rowland  v.  Miller  (Super.  N.  Y.),  18  8  Hostetter   v.  Los    Angeles    Terminal 

N.Y.  5.205;  Code  Civil  Proc.N.  Y.,§i5ii.  •  Ry.  Co.  (Cal.),  41  Pac.  Rep.  330. 

*Lochte  v.  Austin,  69  Miss.  271.  9  Hill    v.  Smith   (Tex.),  25  S.  W.  Rep. 

5  Heller  v.Cohen  (Sup.),  41  N.  Y   Supp.  1079. 
214. 


§633-          OPERATIONS  PRELIMINARY   TO    CONSTRUCTION.  442 

manner  as  to  show  an  intention  to  make  them  locative,  will  not  ordinarily 
have  precedence  over  calls  for  courses  and  distances.1 

Where  the  field-notes  returned  by  a  government  surveyor  show  that  section 
and  quarter- section  corners  were  established  on  a  straight  line  between  town- 
ship corners,  and  their  location  is  fixed  by  courses  and  distances,  they  will  be 
accepted  as  presumptively  correct,  and  can  be  overcome  only  by  the  most 
clear  and  satisfactory  evidence.1 

1  Hanson  v.  Township  of  Red  Rock  in  Minnehaha  County  (S.  D.),  57  N.  W.  Rep.  n. 


PART  IV. 

EASEMENTS.     INCORPOREAL   RIGHTS. 


CHAPTER   XXXII. 

EASEMENTS   IN   GENERAL. 

641.  Easement  Defined. — Operations  frequently  arise  in  the  practice  of 
civil  engineers  and  surveyors  concerning  certain  incorporeal  rights  and  interests 
acquired  by,  or  belonging  to,  their  clients  or  employers  not  treated  in  the 
foregoing  chapters.  By  incorporeal  rights  are  understood  those  rights  in 
things  that  can  neither  be  seen  nor  handled,  that  are  creatures  of  the  mind 
and  exist  only  in  contemplation.1  They  are  generally  rights  and  interests 
acquired  by  one  person  in  and  over  the  land  of  another,  and  include  rights 
of  way,  rights  to  water,  support,  air,  light,  view,  and  a  multitude  of  similar 
interests -that  are  appurtenant  to  and  constitute  the  enjoyment  of  land.  They 
are  called  easements.  These  rights  and  interests  arise  and  are  met  with  in 
surveying  and  in  establishing  roads,  streets,  and  railways;  in  the  location  of 
bridges,  water-works,  and  sewers;  in  selecting  sites  for  structures  requiring 
extra  lateral  support,  light,  air,  and  prospect;  in  fact,  in  all  engineering 
projects  where  questions  of  water  rights  and  privileges  may  arise,  or  where  ways 
may  be  obstructed,  and  similar  injuries  to  which  damages  are  a  consequence. 

An  easement  or  servitude  has  been  defined  to  be  a  privilege  without  profit 
which  the  owner  of  one  neighboring  tenement  has  of  another,  or  a  right  to 
some  profit,  benefit,  or  beneficial  use  out  of,  in,  or  over  the  estate  of  another 
proprietor,  which  right;  compels  the  servient  owner  to  suffer,  or  prevents  him 
from  doing,  on  his  own  land,  something  which  is  to  the  advantage  of  a 
dominant  owner.2  Easements  are  of  two  kinds,  appurtenant  and  in  gross. 
The  former  run  with  the  land  and  pass  by  a  deed  of  conveyance,  while  the 
latter  are  personal  and  will  not  pass  by  conveyance  of  the  land.  Easements 
in  gross  belong  to  the  person  using  them  and  cannot  be  assigned  to  another 
nor  transmitted  by  descent.  Such  easements  die  with  the  person  and  have 

1  Blackstone.  J6  Amer.  &  Eng.  Ency.  Law  139. 

443 


§642.  OPERATIONS  PRELIMINARY    TO    CONSTRUCTION.  444 

been  held  to  be  so  exclusively  personal  that  the  owner  of  the  right  cannot 
admit  another  person  to  share  it  with  him. 

An  easenient  created  by  a  deed  is  never  presumed  to  be  personal  or  in 
gross  when  it  can  fairly  be  construed  to  be  appurtenant  to  some  other  estate. 
If  the  easement  naturally  enhances  the  value  of  other  adjoining  lands  of  the 
grantor,  it  is  a  strong  circumstance  to  indicate  that  it  was  intended  to  be 
appurtenant  to  the  estate  and  not  merely  personal.1  There  is  another  class 
of  servitudes,  known  as  ^««^-easements,  which  includes  two  subclasses  of 
easements:  (i)  where  there  has  been  an  easement  proper,  with  a  dominant 
and  servient  tenement,  and  the  ownership  of  such  tenements  has  been  joined 
in  one  person — in  which  case,  when  the  ownership  is  again  severed  by  a  con- 
veyance of  the  dominant  estate,  the  easement  does  not  pass  by  the  general 
word  "appurtenances,"  but  there  may  be  particular  or  general  words  indicat- 
ing an  express  intention  to  grant  the  easement;  (2)  where  the  owner  of  a 
tenement  has  imposed  a  servitude  upon  one  portion  of  it  for  the  benefit  of 
another  portion  and  there  has  never  been  a  separate  ownership  of  the  two 
estates.  This  second  subclass  is  again  subdivided  into  continuous  and  discon- 
tinuous easements.  A  continuous  easement  is  one  in  which  the  enjoyment  is 
or  may  be  continuous  without  the  necessity  of  any  actual  interference  by  man. 
Such  would  be  a  drain  or  a  sewer.  A  discontinuous  easement  is  one  which 
can  be  enjoyed  only  by  the  interference  of  man,  and  among  such  may  be 
mentioned  rights  of  way  or  the  right  to  draw  water. 

Easements  are  distinguished  from  a  right  of  profit,  as  when  a  person  is 
entitled  to  remove  and  appropriate  for  his  own  use  anything  growing  on,  or 
attached  to  or  subsisting  upon,  the  land  of  another.  Such  a  right  is  a  privi- 
lege, and  it  is  an  easement ;  but  an  easement  is  or  may  be  a  privilege  without 
profit,  and  merely  an  accessory  to  rights  of  property  in  land.  Such  a  right 
to  take  profits  from  an  estate  is  called  a  profit  a  prendre. 

An  easement  may  have  the  following  essential  qualities:  (i)  there  must 
be  two  tenements,  the  dominant  and  the  servient,  owned  by  two  or  more  pro- 
prietors; (2)  the  rights  are  incorporeal  and,  strictly  considered,  they  exist 
only  in  favor  of,  and  are  imposed  only  upon,  corporeal  property;  (3)  strictly 
an  easement  confers  no  rights  to  any  profits  arising  from  a  servient  estate; 
(4)  it  must  have  a  character  of  permanency  and  continuity;  (5)  an  easement 
appurtenant  cannot  be  assigned  separately  from  the  dominant  estate;  (6)  an 
easement  in  gross  is  not  assignable  at  all,  nor  is  it  inheritable.2 

642.  How  Easements  are  Acquired  or  Created.  —  All  easements  are 
created  by  grant,  either  express  or  implied.  The  latter  include  those 
acquired  by  prescription,  since  the  law  presumes  the  existence  of  a  grant  at 
some  former  time.  An  easement  being  an  interest  in  land,  if  created  by  a 
parol  contract  it  is  void  under  the  statute  of  frauds  unless  there  is  shown  such 
a  performance  as  to  take  it  out  of  the  statute.  The  party  asserting  a  claim 
*6  Amer.  &  Eng.  Ency.  Law  140,  148.  26  Amer.  &  Eng.  Ency.  Law  140,  142. 


445  EASEMENTS  IN  GENERAL.  §  645. 

to  an  easement  must  prove  his  right  to  it  clearly.     It  cannot  be  established 
by  intendment  or  presumption. l  * 

643.  How  an  Easement  may  be  Lost  or   Extinguished. — An  easement 
may  be  lost  or  extinguished  (i)  by  release  from  the  owner  of  the  dominant 
estate;   (2)  by  merger  of  the  estates  under  one  and  the  same  title;   (3)  by 
abandonment.    The  easement,  whether  acquired  by  grant  or  prescription,  may 
be  released,  extinguished,  renounced,  or  modified  by  a  parol  license  granted 
by  the  owner  of  the  dominant  estate,   and  executed    by  the  owner  of  the 
servient  estate.2     No  deed  of  writing  is  required  to  show  the  abandonment 
and  extinguishment  of  an  easement  in  the  land  of  another.     The  act  or  acts 
relied   on  to  effect  such  a  result  must  be  of  a  decisive  character.     A  mere 
declaration  of  an  intention  to  abandon  will  not  be  sufficient,  and  the  question 
whether  the  act  amounts  to  an  agreement  or  not  depends  upon  the  intention 
with  which  it  was  done,  and  that  is  a  question  for  the  jury.3 

644.  Character  of  Easement  Not  an  Interest  in  the  Fee. — A  fee  simple 
in  land  cannot  be  acquired  by  prescription  by  overflowing  the  land  and  using 
the  water  therefrom;  the  most  that  can  be  thus  acquired  is  an  easement.4 
However,  when  a  water-works  company  had  occupied  land,   in  connection 
with  its  franchise,  for  eighty  years,  its  possession  was  held  to  have  ripened 
into  a  perfect  title  as  against  a  village  which  injured  the  water-works.      It  was 
no  defense  to  an  action  for  trespass  that  said  company  did  not  pay  for  said 
land  as  required  by  its  charter.5 

When  an  owner  has  constructed  an  addition  to  his  buildings,  using  the 
exterior  wall  thereof  as  the  outside  wall  of  the  partition,  and  conveys  that  part 
of  the  lot  on  which  the  addition  stands,  describing  it  as  the  *  'south  26  feet 
more  or  less  "  of  the  lot  with  the  undivided  one-half  of  the  wall,  the  grantee 
will  take  only  an  easement  in  the  wall  and  not  any  part  of  the  land  on  which 
it  stands.6  The  easement  in  a  street  appurtenant  to  lots  is  not  confined  to 
the  steps  immediately  in  front  of  such  lots.7 

An  incorporeal  hereditament  is  a  right  issuing  out  of  a  thing  corporate 
(whether  real  or  personal)  or  concerning  or  annexed  to  or  exercisable  within 
the  same.  It  is  not  the  thing  corporate  itself,  which  may  consist  of  lands, 
houses,  etc.,  but  something  collateral  thereto,  as  a  rent  issuing  out  of  those 
lands  or  houses.8 

645.  Easements  Extinguished  by  Merger  of  Estates. — An  easement  of 
way  created  in  deeds  from  the  owner  of  two  adjoining  lots  to  different  persons, 

1  Poison  v.  Ingram,  22  S.  C.  541.  5  Boyert/.  Village  of  Little  Falls  (Sup.), 

2  Morses.  Copeland  (Mass.), 2  Gray  302.       27  N.  Y.  Supp.  1114. 

And  see  Dyer  v.    Sanford  (Mass.),  9  Met.  6  Duncan  v.  Rodecker  (Wis.),  62  N.  W. 

395-  Rep.  533- 

3  6  Amer.  &  Eng.  Ency.  Law  146,  147.  7  Wilson  v.  N.  Y.   El.   R.   Co.  (Super.), 
4Terre  Haute  &  I.   R.  Co.  v.  Zehner  30  N.  Y.  Supp.  547. 

(Ind.  App.),  42  N.  E.  Rep.  756;  Costello  8  United  States   v.    Andres    Castillero, 

v.  Harris  (Pa.  Sup.),  29  Atl.   Rep.  874.  2  Bl.  20,  21. 

*  See  Sees.  671-690,  infra. 


§646.          OPERATIONS  PRELIMINARY   TO    CONSTRUCTION.  44$ 

in  favor  of  one  of  them  over  the  other,  is  extinguished  by  the  subsequent 
acquirement  of  the  title  and  possession  of  both  lots  by  one  person.  A  right 
of  way  does  not  revive  and  pass  by  the  word  ''appurtenances"  where  a  person 
purchases  land  formerly  a  dominant  tenement,  but  having  its  easement 
extinguished  by  the  union  of  the  dominant  and  servient  tenements  in  the 
grantor. : 

When  a  mortgagor  of  a  dominant  tenement  becomes  owner  in  fee  of 
the  servient  estate,  the  unity  of  the  two  estates  does  not  extinguish  the  ease- 
ment so  as  to  affect  the  rights  of  one  claiming  an  interest  in  the  easement 
\inder  a  foreclosure  of  a  mortgage  on  the  dominant  tenement  and  in  which 
the  easement  was  expressly  included.2  The  joining  of  two  estates  in  the  same 
person,  as  a  mortgagee,  will  not  extinguish  a  right  of  way  appurtenant  to  one 
of  the  estates  until  both  mortgages  are  foreclosed.3  If  the  title  to  the  land 
be  defective  and  the  title  to  an  easement  in  it  be  valid,  the  easement  is  not 
extinguished  by  unity  of  possession.4 

646.  Parties   Entitled   to   Enjoy  Easement. — Where  an  easement  in  a 
private  road  is  granted  to  the  abutting  landowner,   his  heirs  or  assigns,    it 
means  for  the  benefit  of  all  his  heirs  or  assigns  however  numerous  and  into 
however  many  parcels  the  abutting  land  may  be  subdivided  or  assigned.5     In 
Utah  and  other  communities  where  families  are  large  it  would  seem  that  the 
words  "heirs   or    assigns"  might    be   the    means    of    creating  a  very  large 
burden  upon  an  estate. 

647.  Rights  and  Liabilities  of  the  Parties  to  the  Easement — Mainte- 
nance of  Easement. — The  owner  of  the  dominant  estate  has  a  right,  as  well  as 
a  duty,  as  a  part  of  the  servitude,  to  perform  at  his  own  expense  all  such 
works  as  are  necessary  to  preserve  and  make  use  of  a  servitude,  and  he  is 
therefore  entitled  to  have  access  to  such  servient  estate  to  make  the  necessary 
repairs.     The  owner  of  the  servient  estate  can  do  nothing  to  diminish  the 
use,  convenience,  or  benefit  of  an  easement;  nor  can  the  owner  of  the  domi- 
nant estate  enlarge  his  use  so  as  to  increase  the  burden  upon  the  servient 
estate,  except  in  so  far  as  such  change  and  use  may  be  necessary  to  make  the 
easement  effectual.     Both  parties  have  the  right  to  insist  that  the  easement 
.shall  remain  substantially  as  it  was  at  the  time  of  its  creation.     When  a  person 
had  an  easement  in  another's  land  which  permitted  him  to  discharge  water 
into  a  stream  by  means  of  a  ditch,  it  was  held  that  if  the  ditch  got  out  of 
repair  by  reason  of  floods  or  washing  away  of  its  banks  or  otherwise,  it  was 
the  legal  right  of  the  plaintiff  to  repair  it  so  as  to  restore  it  to  its  original  con- 
dition and  make  it  subserve  the  purpose  for  which  it  was  originally  intended, 
that  of  carrying  off  the  water.      It  was  held  that  he  was  entitled  to  have  the 

1  Fritz  v.  Tompkins  (Sup.),  41  N.  Y.  4 Tyler  v.  Hammond  (Mass.),  n  Pick. 

Supp.  985.  193-  ' 

3Duval  v.  Becker  (Md.),  32  Atl.  Rep.  5  Sachs  v.  Cordes,  n  Ohio  Cir.  Ct. 

308.  Rep.  145. 

3Ritger  v.  Parker,  8  Cush.  145. 


447  EASEMENTS  IN  GENERAL.  §  648. 

ditch  kept  up  as  it  was  when  he  purchased  his  land,  and  to  keep  it  in  that 
condition,  and  if  necessary  to  enter  upon  the  defendant's  land  to  make 
repairs,  doing  no  unnecessary  damage.  He  would  have  no  right  to  substan- 
tially change  the  condition  of  a  ditch  to  the  injury  of  the  defendant's  land. 
He  would  have  no  right  to  change  its  character  by  the  construction  of  barriers 
or  embankments  and  cause  greater  quantities  of  water  to  flow  upon  the 
defendant's  land  in  times  of  freshets  or  floods.  The  owner  of  the  servient 
estate  in  such  a  case  would  have  a  legal  right  to  reduce  such  embankments 
and  barriers  to  the  proper  standard  and  size,  but  would  not  be  justified  in 
destroying  the  structure. 1 

648.  Destruction  and  Restoration  of  Easement. — In  the  absence  of  any 
express  agreement  between  the  parties,  the  one  whose  premises  are  burdened 
by  an  easement  is  bound  to  offer  reasonable  facilities  for  its  enjoyment.2 
Therefore  when  an  easement  was  created  by  reservation  in  a  deed,  and  con- 
sisted of  a  right  to  take  water  from  a  well,  there  was  imposed  upon  the  owners 
of  the  servient  estate  the  obligation  to  keep  the  well  in  repair  or  in  a  condi- 
tion to  be  used.  If  the  owner  of  the  well  erected  buildings  of  a  permanent 
character  over  and  upon  it  and  thus  destroyed  the  easement,  he  is  liable  for 
damages  for  such  willful  destruction  of  the  easement.  If  an  old  right  of  way 
be  closed  and  a  new  one  opened  up  for  the  use  of  those  having  rights  in  the 
use  of  the  old  one,  and  if  they  assent  to  the  change  and  use  the  new  way  for 
a  period  less  than  the  statutory  period  of  limitations,  the  owner  cannot  close 
such  new  way  without  first  restoring  the  old  one  to  its  former  condition.  If, 
without  restoring  the  old  way,  the  owner  of  the  land  removes  the  bridge  over 
a  stream  crossed  by  the  new  way,  those  having  a  prescriptive  right  to  the  old 
way  may  rebuild  the  bridge  or  fill  in  the  stream  where  such  bridge  stood, 
doing  as  little  damage  as  possible  to  the  owner  of  the  land,  and  continuing 
the  use  of  the  way  until  the  old  one  is  restored.3 

Any  one  in  possession  of  the  dominant  estate  may  have  an  action  for  the 
unlawful  obstruction  or  disturbance  of  an  easement ;  and  if  there  be  permanent 
injury  to  the  inheritance,  one  entitled  to  the  reversion  may  also  have  an 
action.  The  person  injured  may  seek  relief  in  a  court  of  law  or  a  court  of 
equity.  At  law  the  remedy  is  in  damages  for  the  injury  already  done,  and  in 
equity  the  remedy  may  be  for  the  injuries  done  and  an  injunction  to  restrain 
further  injury. 

The  destruction  of  the  buildings  of  a  servient  estate  through  no  fault  of 
the  owner  does  not  extinguish  the  easement  where  the  enjoyment  thereof  is 
not  dependent  entirely  on  such  buildings.  On  the  rebuilding  of  a  mill,  by 
means  of  which  an  easement  was  enjoyed,  the  easement  itself  is  revived  even 
though  there  was  no  obligation  on  the  servient  owner  to  rebuild.4 

*6  Amer.  &  Eng.  Ency.  Law,  and  many  see  Kraut's  Appeal,  71  Pa.  St.  64. 

eases.  *  Hottell  v.   Farmers'  Protective  Ass'a 

1  Bakeman  v.  Talbot,  31  N.  Y.  366.  (Colo.),  53  Pac.  Rep.  327  [1898]. 
*      •  Hamilton  v.  White,   5   N.   Y.  9.     And 


§649*          OPERATIONS  PRELIMINARY   TO   CONSTRUCTION.  448 

If  an  adjoining  owner  who  has  an  easement  in  a  right  of  way  has  notice 
that  a  building  is  being  erected  over  his  right  of  way  by  a  person  who  is 
chargeable  with  notice  of  his  rights,  he  is  not  estopped  from  an  action  to 
remove  it.  A  court  will  require  the  removal  of  such  an  obstruction,  or  that 
adequate  compensation  be  made  giving  damages.1 

649.  Abandonment  of  Easements, — The  abandonment  of  an  easement 
may  be  presumed  from  various  acts  of  the  dominant  owner,  as,  for  example, 
where  the  holder  of  a  right  does  or  permits  to  be  done  any  act  inconsistent 
with  the  future  enjoyment  of  the  right.  Abandonment  may  be  presumed 
from  non-user  for  a  length  of  time  sufficient  to  create  the  right  by  prescription 
where  such  right  was  originally  acquired  by  prescription.  Extinguishment  of 
a  right  to  an  easement  means  its  total  annihilation,  and  not  its  suspension. 
If  extinguished  for  a  moment,  it  is  gone  forever.  Servitude  may  be  extin- 
guished by  the  act  of  God,  by  the  operation  of  the  law,  or  by  an  act  of  the 
party.  It  may  be  extinguished  by  a  renunciation  of  the  party,  either  express 
or  implied,  as  by  permitting  the  party  from  whom  the  servitude  is  due  to 
build  upon  the  property  such  works  as  would  presuppose  an  abandonment  of 
the  right.  An  act  incompatible  with  the  nature  or  exercise  of  a  servitude  is 
sufficient  to  extinguish  it.  The  creation  of  a  new  inconsistent  right  by  the 
party  himself  will  extinguish  his  former  right.2 

If  one  who  owns  an  easement  in  a  wall  which  forms  a  side  of  his  building 
erect  a  new  building  on  a  different  foundation  after  the  destruction  of  the  old 
wall  and  building,  he  thereby  loses  his  easement.3  So  where  a  deed  conveys 
the  right  to  use  a  stairway  in  a  building  which  is  necessary  to  reach  the  upper 
floor  of  the  dominant  building,  the  easement  continues  only  so  long  as  the 
building  of  which  the  stairway  is  a  part  exists,  and  it  ceases  with  the  destruc- 
tion of  the  building.4 

Growing  a  grape-arbor  in  an  alley  and  allowing  a  tree  to  grow  therein  does 
not  abandon  the  alley  or  justify  other  abutting  owners  in  closing  it,  the 
obstructions  not  being  serious  and  the  other  lot-owners  not  having  requested 
that  they  be  removed.5  An  abandonment  of  a  right  of  way  by  consenting  to 
its  obstruction  does  not  constitute  a  surrender  of  the  right  to  maintain  a 
sewer-pipe  under  the  way,  provided  such  pipe  has  not  been  obstructed  or 
discontinued.6 

Land  covered  by  a  party-wall  remains  severally  the  property  of  the  owner 
of  each  half,  but  the  title  of  each  is  qualified  by  the  easement  to  which  the 
other  is  entitled.  The  only  proper  easement  in  such  a  case  is  the  easement 

1  Welsh  v.  Taylor  (N.  Y.),  50  Hun  137  4  Douglass  v.  Coonley  (Sup.),  32  N.  Y. 

[1888].  Supp.  444. 

'Taylors.  Hampton  (S.  C.),  4  McCord  5  Ermentraut  v.  Stitzel  (Pa.),  33  Atl. 

61.  Rep.  103. 

3  Duncan  v.  Rodecker  (Wis.),  62  N.  W.  6  Stein  v.  Dahm  (Ala.),  n  So.  Rep. 

Rep.  533-  597- 


449  EASEMENTS  IN  GENERAL.  §  650. 

of  support,  and  it  does  not  include  a  right  to  an  unobstructed  use  of  a  flue 
by  one  party  which  is  upon  the  land  of  another  party.1 

Where  a  private  lane  between  two  lots  was  abandoned  by  the  owners,  and 
a  line-fence  was  built  in  the  center  thereof,  a  subsequent  purchaser  of  one  of 
the  lots  cannot  revive  the  easement  in  such  lane.*  Acceptance  of  a  deed 
making  no  mention  of  an  alley,  but  including  land  on  which  it  is  located, 
is  not  an  abandonment  of  it  by  the  acceptor,  he  having  actual  as  well  as  con- 
structive notice  and  knowledge  of  its  existence  and  location.3 

Where  an  abandonment  of  an  easement  is  relied  on,  it  is  for  the  one 
claiming  such  abandonment  clearly  to  prove  it.4 

650.  Easements  Lost  by  Non-user. — For  an  easement  to  become  extin- 
guished by  non-user  it  must  have  been  acquired  by  user.  The  doctrine  of 
extinguishment  by  non-user  does  not  apply  to  the  servitudes  or  easements 
created  by  a  deed.  An  easement  acquired  by  actual  grant  is  not  lost  by  non- 
user.5  In  the  former  cases  mere  disuse  is  sufficient;  but  in  the  latter  there 
must  not  only  be  a  disuse  by  the  dominant  owner,  but  there  must  be  an 
actual  adverse  user  by  the  owner  of  the  land  servient.6 

A  permanent  obstruction  by  one  party,  insisted  on  by  the  other,  operates 
to  extinguish  all  right  to  a  use  of  a  common  way  wherever  such  obstruction 
has  existed  for  a  period  less  than  the  full  statutory  period.  Non-user  for 
twenty  years  should  be  accompanied  by  acts  which  show  an  intention  to 
abandon  in  order  that  the  easement  should  be  extinguished.  Otherwise  it 
requires  adverse  possession  as  well  as  non-user  to  effect  the  extinguishment. 
It  seems  well  settled  in  many  of  the  older  states  that  the  owner  of  a  right  of 
way  or  other  easement  may,  without  deed,  abandon  his  right  so  as  to  relieve 
the  servient  estate  of  the  incumbrance.7 

Mere  non-user  is  not  sufficient  to  extinguish  a  right  of  way  unless  there 
has  been  an  actual  abandonment  of  it,  or  there  have  been  acts,  by  those  in 
possession  of  the  land  over  which  it  exists,  not  merely  inconsistent  with  the 
user  of  the  way,  but  hostile  to  the  right,  and  constituting  some  element  of 
adverse  possession.8 

Abandonment  is  simply  non-user  of  an  easement.  The  enjoyment  of  the 
right  must  have  totally  ceased  for  the  same  length  of  time  as  was  necessary  to- 
create  the  original  presumption  of  a  grant.  Non-user  for  the  full  period 
affords  a  presumption  either  that  the  former  presumptive  right  was  extin- 
guished in  favor  of  some  other  adverse  right,  or,  if  no  such  adverse  right 

1  Ingals    v.     Plamondon,     75     111.     218       Rep.   1128;    Many    v.    Port    Reading    R. 
[1874].  Co.  (N.  J.  Ch.),  33  Atl.  Rep.  802;  Fird  v. 

3  Hennessy  v.  Murdock  (Sup.),  17  N.  Y.        Harris  (Ga.),  2  S.  E.  Rep.  144. 

Supp.  276.  66  Amer.  &   Eng.  Ency.  Law  148,  cases 

'Ermentrout   v.    Stitzel  (Pa.),    33   Atl.  cited. 
Rep.  103.  7  6  Amer.  &  Eng.  Ency.  Law  146-149. 

4  Hennessy  v,    Murdock  (N.  Y.  App.),  8  Marshall  r.  Wenninger  (Sup. ),  46  N. 
33  N.  E.  Rep.  330.  Y.  Supp.  670;  Lathrop  v.  Eisner  (Mich.), 

5Butterfield  v.  Reed  (Mass.),  35  N.  E.       53  N.  W.  Rep.  791. 


§651.          OPERATIONS   PRELIMINARY    TO    CONSTRUCTION.  450 

appears,  that  it  has  been  surrendered  or  never  had  any  existence.  Non-user 
of  land,  it  seems,  is  sufficient  to  produce  this  effect  without  showing  the 
erection  of,  or  permission  to  erect,  a  permanent  obstruction. 

When  a  public  way  is  closed  up  and  held  by  open  and  notorious  possession 
for  more  than  twenty  years,  the  abutting  property  owners  lose  their  private 
rights  in  it.1  But  a  mere  non-user  of  a  street  or  alley  of  a  town  for  the  period 
necessary,  to  give  title  by  adverse  possession  will  not  amount  to  an  abandon- 
ment obstructing  the  rights  of  the  public.2 

A  mere  non-user  of  a  right  of  way  granted  to  a  railroad  company  will  not 
extinguish  the  right  in  the  absence  of  adverse  possession  by  the  servient 
owner,  or  of  some  acts  which  show  a  clear  intention  to  abandon  the  right  of 
way.3  Evidence  that  a  railroad  was  taken  up,  the  rails  and  ties  removed,  the 
fences  taken  away,  and  the  bridge  across  an  intersecting  river  torn  down,  and 
all  with  a  view  of  abandonment,  is  sufficient  to  show  an  abandonment  of  the 
easement  of  the  right  of  way. 4 

An  easement  of  a  right  of  way  when  once  acquired  is  not  extinguished  by 
an  omission  to  use  it.5  A  mere  non-user  without  an  attempt  to  abandon  will 
not  operate  as  an  abandonment  of  an  easement.6  The  non-user  must  be 
attended  by  an  act  indicating  an  attempt  to  abandon  the  right  of  way,  to  give 
it  the  effect  of  a  release.7 

If  an  abutting  owner  conveys  all  his  interest  in  the  street  and  consents  to 
the  closing  of  the  street,  his  grantee  cannot  thereafter  prevent  the  streets  being 
closed.8  If  a  person  have  a  right  of  way  over  a  neighbor's  lot,  and  if  he  con- 
sent to  an  enlargement  or  extension  of  a  building  on  said  lot  so  as  to  close 
the  way,  he  will  have  surrendered  his  easement.9 

651.  Extent  and  Mode  of  Use  of  an  Easement. — The  use  of  an  easement 
is  limited  strictly  to  the  purpose  for  which  it  was  created,  but  its  use  may  be 
enjoyed  in  such  a  manner  as  will  secure  all  the  advantages  contemplated  by 
the  grant.  It  has  been  held  that  a  dominant  estate  may  be  divided,  and  the 
privileges  belonging  to  the  whole  will  attach  to  each  of  the  parts.  However, 
the  burden  upon  the  servient  estate  must  not  be  increased  thereby.  A 
dominant  owner  cannot  extend  privileges  which  he  has  in  favor  of  one  estate 
to  others  that  he  may  acquire.10  The  owner  of  an  easement  in  the  land  of 
another  is  not  bound  to  use  it  in  the  particular  manner  prescribed  by  the 
Instrument  which  creates  it.  He  may  use  it  in  a  different  manner  if  he  so 

1  Woodruff   v.    Paddock  (N.  Y.  App.),       W.  Rep.  342. 

39  N.  E.  Rep.  1021;  Bentley  v.  Root  (R.  5  Welsh  v.  Taylor  (N.  Y.),  50  Hun  137 

I.),  32  Atl.  Rep.  918.  [1888]. 

2  Crocker  v.  Collins  (S.  C.),  15    S.    E.  6  Valentine  v.  Schreiber  (Sup.),  38  N. 
Rep.  951;  Edgerton  v.  McMullen  (Kan.),  Y.  Supp.  417. 

39  Pac.  Rep.  1021.  7Suydam  v.   Dunton  (Sup.),  32    N.  Y. 

8  Roanoke  I.  Co.   v,  Kansas  City,  etc.,  Supp.  333. 

R.  Co.  (Mo.  Sup.),  17    S.  W.    Rep.  1000  8Comstock  v.  Sharp  (Mich.),  64  N.  W. 

And  see  Kirman   v.   Hunnewill  (Cal.),  29  Rep.  22. 

Pac.  Rep.  124.  '  Stein  v.  Dahm  (Ala.),  II  So.  Rep.  597. 

4  Jones  v.  Van  Bochove  (Mich.),  61  N.  l°6  Amer.  &  Eng.  Ency.  Law  152. 


451  EASEMENTS   IN  GENERAL.  §651. 

desires,  provided  he  does  not,  in  doing  so,  increase  the  servitude,  nor  change 
it,  to  the  injury  of  the  owner  of  the  servient  tenement. l 

So,  too,  a  deed  of  all  the  merchantable  coal  in  an  open  mine  under  the 
grantor's  land  with  a  right  of  way  over  said  land  to  carry  the  coal  away  does 
not  authorize  the  coal  mined  upon  another  tract  to  be  carried  over  the  right 
of  way,  nor  can  it  be  carried  over  such  way  by  reason  of  the  .practice  of  a 
former  owner  of  both  tracts.2  A  reservation  of  a  right  of  way  over  a  farm  to 
a  wood  lot  permits  the  use  of  it  for  hauling  stone  and  other  products  to  the 
wood  lot.3* 

1  Tallon  v.  City  of  Hoboken  (N.  J.),  37       226. 

Atl.  Rep.  895.  3  Wells   v.    Tollman  (Sup.),    34   N.    Y. 

2Vogel  v.  Webber  (Pa.),  28  Atl.  Rep.       Supp.  840. 

*Sce  Sec.  68 1,  infra. 


CHAPTER  XXXIII. 
LICENSE,    REVOCABLE   AND  , IRREVOCABLE. 

661.  License  Distinguished  from  Easement.* — An  easement  should  be 
distinguished  from  a  license.  The  former  is  an  incorporeal  hereditament  and 
implies  an  interest  in  the  land  upon  which  it  is  imposed,  and  therefore  it 
may  be  created  only  by  grant,  expressed  or  presumed.  A  license  creates  no 
such  interest  in  the  land.  A  license  is  authority  merely  to  do  some  act  or 
acts  upon  another's  land  without  possessing  any  estate  therein.  A  license  is 
limited  strictly  to  the  original  parties  and  cannot  operate  for  or  against  third 
parties.  It  is  founded  on  personal  confidence,  is  not  assignable,  and  is  valid 
though  not  in  writing.  It  may  be  and  generally  is  created  by  word  of  mouth, 
and  may  ordinarily  be  revoked  at  any  time  by  the  licensor,  though  not  always. 
Some  courts  have  held  that  a  parol  license  when  executed  may  become  an 
easement,  but  it  is  submitted  that  this  is  a  misnomer,  and  that  a  better  name 
would  be  "an  irrevocable  license  "  based  upon  the  doctrine  of  estoppel. 

A  proper  understanding  of  the  character  of  a  license  is  very  essential  to 
those  persons  undertaking  construction.  Works  should  not  be  erected  and 
improvements  made  upon  land  by  permission  of  the  owner  thereof  without 
acquiring  a  right  to  control  or  operate  such  works,  in  the  form  of  a  lease,  a 
grant  of  an  easement,  or  some  interest  in  the  land,  that  shall  be  valid  and 
'binding  on  the  owner.  Works  erected  under  a  mere  license  from  the  owner 
of  the  land  may  be  required  to  be  removed,  or  their  operation  and  occupa- 
tion prevented  by  the  landowner.  Such  an  act  on,  the  part  of  the  landowner 
might  render  all  the  works  and  improvements  abortive  and  a  total  loss  to  the 
parties  who  had  undertaken  them. 

While  this  is  a  general  proposition  of  the  law,  it  has  not  been  sustained 
by  the  cases  in  construction  work.  These  cases  have  uniformly  held  that 
when  the  owner  of  land  has  permitted  another  person  to  make  valuable  and 
permanent  improvements  upon  his  land  with  the  expectation  and  intention  of 
making  some  use  and  profit  thereby,  the  owner  may  not  arbitrarily  and  willfully 
eject  the  party  without  regard  to  his  interests  and  the  profit  he  might  expect 
to  derive  from  the  investment.  Parol  licenses  when  executed  or  acted  upon 
become  irrevocable,  and  after  a  disclaimer  and  long  user  become  easements 

*  See  Sees.  738,  739,  infra. 

452 


453  LICENSE,  REVOCABLE  AND    IRREVOCABLE.  §  662. 

in  the  land  of  the  grantor.  It  has  been  so  held  of  a  ditch,1  of  sewer-  and 
drain-pipes,2  of  a  pipe-line  for  water,3  and  of  a  stairway  for  entrance  to  upper 
stories.4 

662.  License  to  Divert  Waters  by  Dams. — Ordinarily  an  oral  permission 
to  divert  and  use  water  from  a  stream  is  a  mere  license  which  is  revocable 
and  does  not  vest  any  estate  in  the  land.5  If,  however,  the  licensee  has 
expended  money  and  labor  in  pursuance  of  the  license,  the  licensor  may  be 
estopped  from  revoking  the  license  to  the  detriment  and  injury  of  the 
licensee;6  as  where  for  eight  years  riparian  owners  and  their  grantors  had 
acquiesced  in  the  diversion  of  a  part  of  a  stream,  and  a  person  who  was  not  a 
riparian  owner  had  yearly  aided  in  keeping  the  channel  of  the  stream  open, 
and  had  expended  money  on  his  farm  which  would  be  useless  without  the 
water,  a  court  of  equity  may  refuse  to  enjoin  a  further  diversion  of  the  water 
at  a  suit  of  such  riparian  owners.7 

A  license  to  build  a  dam,  and  an  undertaking  on  the  part  of  the  licensee, 
with  the  licensor's  knowledge  and  assistance,  to  furnish  other  persons  with 
water  from  the  dam  for  a  certain  period,  was  held  to  be  irrevocable  until  after 
the  expiration  of  that  period.8 

Where  the  owner  of  a  mill  privilege  gave  the  owner  of  lands  which  were 
flowed  by  the  waters  impounded  by  his  dam  an  oral  license  to  erect  a  dam  on 
the  land  of  the  licensee,  and  also  to  dig  a  ditch  across  the  land  of  the  licensor 
to  drain  water  from  a  part  of  the  licensee's  land,  and  where  under  this  license 
the  dam  was  erected  and  a  ditch  dug,  it  was  held  that  the  licensor  could 
revoke  the  license  to  use  the  ditch  even  after  the  expiration  of  twenty  years, 
but  could  not  revoke  the  license  to  build  the  dam;  and  it  was  further  held 
that,  the  licensor  having  undertaken  to  revoke  the  whole  license,  the  licensee 
was  justified  in  making  a  ditch  on  his  own  land  to  draw  off  the  water  so 
thrown  upon  it  although  he  thereby  diverted  the  water  from  the  licensor's 
pond.9 

Where  a  landowner  had  granted  a  license  for  the  erection  of  certain  dams 
across  a  river,  a  judgment  against  the  licensees  for  damages  caused  by 
improperly  maintaining  such  dams,  under  a  complaint  charging  them  with 
wrongfully  erecting  and  maintaining  the  same,  was  held  erroneous  as  violating 
the  rights  of  the  defendants  under  the  license.10 

1Steinke    v.    Bently    (Ind.),    34  N.   E.  pleadings.     Accord,    Peay  v.    Salt  Lake 

Rep.  97.  (Utah),  40  Pac.  Rep.  206. 

2  Atkins  v.  Thompson   (Mass.),   29  N.  6McBroom   v,   Thompson    (Oreg.),    35 
E.     Rep.    627;      Stevens    v.    Muskegon  Pac.   Rep.  57;  Smith  v.  Green  (Cat.),  41 
(Mich.),  69  N.  W.  Rep.  227.  Pac.  Rep.  1022. 

3  National  W.  W.  Co.    v.  Kansas    City  7  McBroom  v.  Thompson,  supra. 

(C.  C.),  65  Fed.  Rep.  691.  8  Risiem    v.    Brown   (Tex.),    10  S.   W. 

*  Joseph   v.  Wild  (Ind.  Sup.),  45  N.  E.  Rep.  661. 

Rep.  467.  9  Morse  v.  Copeland,    2  Gray   (Mass.; 

5  Jensen  v.  Hunter  (Cal.),  41  Pac.  Rep.  302.     And  see  Totel  v.   Bonnefoy,  23  111. 

14.       But     see     Churchill     v.      Bauman  App.  55.   . 

(Cal.),  30  Pac.  Rep.  770,  which  held  that  10  Peay  v.  Salt  Lake  City  (Utah),  40  Pac, 

the  licensor  must  withdraw  his  consent  Rep.  206. 
before   bringing  action;  see   also  as    to 


§663.        *  OPERATIONS   PRELIMINARY    TO    CONSTRUCTION.  454 

A  simple  agreement  that  one  shall  have  the  use  of  land  held  and  used  as 
his  own  so  long  as  he  keeps  a  mill  running  is  a  mere  license; l  so  is  a  simple 
right  to  pass  over  land.2 

Many  cases  have  arisen  where  mill  privileges  have  been  granted  by  parol, 
and  where  attempts  have  been  made  to  revoke  such  license  after  the  mill  and 
dam  have  been  erected  at  large  expense  and  other  improvements  have  been 
made.  It  has  been  held  in  some  cases  that  such  a  license  is  revocable,  and 
in  others  the  contrary.  An  oral  promise  that  if  a  person  would  erect  a  good 
custom  mill  at  a  certain  point  he  should  have  the  privilege  of  flowing  the  land 
so  long  as  he  would  maintain  the  mill  -was  held  a  revocable  license  after 
having  been  acted  upon.3 

Parol  agreement  to  allow  a  party  to  drain  his  land  through  a  ditch  over 
the  land  of  another  creates  a  license  merely  which  may  be  revoked,  as  by 
damming  the  ditch.4 

663,  Licenses  held  Not  Revocable  on  Ground  of  Contract  and  Estoppel. 
— The  more  modern  cases  rather  tend  to  the  contrary  rule  where  licensee  has 
made  expensive  improvements  of  a  permanent  character,  so  that  a  revocation 
of  a  license  would  work  great  injury  and  would  partake  of  the  character  of  an 
onerous  or  even  fraudulent  transaction;  and  equity  has  frequently  enforced 
the  license  against  the  landowner,  and  has  in  many  cases  restrained  the  revo- 
cation at  least  until  condemnation  proceedings  could  be  had.5  These  cases 
are  placed  upon  the  principles  of  estoppel,  because  the  parties  cannot  be 
placed  in  statu  quo.* 

A  valuable  consideration  may  affect  the  revocability  of  a  license.  In  the 
cases  cited  those  which  have  been  held  irrevocable  are  those  which  have  been 
granted  for  some  consideration  either  of  benefit  to  the  licensor  or  some  detri- 
ment to  the  licensee,  as  in  the  case  where  the  latter  has  made  improvements 
and  invested  money  and  could  not  therefore  be  put  in  statu  quo.  The  least 
that  can  be  said  is  that  there  was  a  contract  for  the  breach  of  which  the 
licensor  would  be  liable  in  damages;  and  an  undertaking  on  his  part  that  the 
licensee  should  be  permitted  to  enjoy  certain  rights  and  privileges  for  a  certain 
valuable  consideration  would  constitute  a  complete  contract,  which,  though 
being  within  the  statute  of  frauds,7  would  at  least  give  to  the  licensee  an 
equitable  right  to  the  enjoyment  of  the  privilege,  or  a  right  to  an  action  for 
damages  for  the  breach  of  the  contract. 

Encouragement  alone  by  an  upper  landowner  to  those  owning  land  below 

1  Malcott  v.  Price,  109  Ind.  22.  337.     See  also  Cronkhite  v.  Cronkhite,  94 

2  Parish  v.  Kaspere,  109  Ind.  585.  N.  Y.  323  [1884]. 

3  Johnson    v.    Skillman,   29    Minn.    95;  6  19    Amer.    &    Eng.    Ency.    Law    859; 
Clute  v.  Carr,  20  Wis.   531.      Contra,  Lee  13  Amer.  &  Eng.  Ency.  Law  551. 

v.  McLeod,  12  Nev.  280,  and  also  Rerick  6  Huff  v.  McAuley,  53  Pa.  St.  206;  Bal- 

v.    Kern  (Pa.),    14  S.  &   R.    267;    Nuna-  timore,  etc.,  Co.  v.  Algire,  63  Md.  319. 

maker  v.  Columbia  W.-p.  Co.  (S.  C.),  25  7Mumford    v.  Whitney,  13  Wend.   380 

S.  E.  Rep.  751.  [1836]. 

4  Dunham  v.  Joyce  (Mo.),  31  S.  W.  Rep. 


455  LICENSE,  REVOCABLE  AND    IRREVOCABLE.  §664. 

him  on  the  stream  to  build  a  mill,  which  would  be  of  great  public  conven- 
ience, will  not  operate  as  a  license  to  permit  the  flowage  of  the  upper  riparian 
owner's  lands  by  water  backed  upon  it  by  the  dam  of  the  mill.1 

664.  License  to  Build  Water-works  and  Sewers. — Where  a  town  was 
authorized  by  statute  to  construct  water-works  or  to  contract  with  a  water 
company  for  its  supply,  and  it  had  adopted  the  latter  course  and  granted  to  a 
corporation  the  right  to  construct  water-works  and  to  supply  the  town  on 
certain  conditions,  and  where,  after  the  water  company  had  constructed 
adequate  water-works  and  was  prepared  to  comply  with  its  contract,  the  town 
passed  a  resolution  to  construct  its  own  water-works,  it  was  held  that,  as 
such  action  was  taken  under  authority  of  the  same  statute,  it  was  in  effect  an 
act  of  the  town  itself  and  one  which  impaired  the  obligation  of  the  previous 
contract  with  the  water  company,  and  that  it  was  contrary  to  the  constitution 
of  the  United  States.2  In  such  a  case,  the  town  having  exercised  its  option, 
and  having  contracted  with  a  company  for  a  water-supply  has  no  power  to 
build  water-works  of  its  own,  and  hence  could  not  enact  a  valid  ordinance 
for  a  contract  with  a  new  company  to  supply  it  and  the  citizens  with  water, 
since  it  was  an  indirect  exercise  of  the  power  to  build  water-works  of  its 
own.3 

It  seems,  however,  that  a  part  of  the  town  or  city  might  be  supplied  by 
water- works  owned  by  the  city,  and  the  remainder  by  a  private  water 
company.4 

Where  a  city  council,  by  contract  in  writing,  grants  to  an  individual  the 
right  to  lay  a  sewer  (for  which  there  is  great  need)  in  certain  streets,  and  to 
connect  the  same  with  the  premises  of  such  adjoining  lot-owners  as  may  con- 
tract with  him  therefor,  the  work  to  be  done  under  the  supervision  of  the  city, 
but  at  the  expense  and  for  the  profit  of  the  grantee,  the  latter  acquires-  a 
vested  right  which  cannot  be  revoked  by  the  city.  But  after  the  sewer  is 
constructed  the  grantee  may  not  recover  damages  because  the  city  passes  an 
ordjnance  prohibiting  persons  from  connecting  with  any  private  sewers  laid  in 
the  streets  without  first  obtaining  permission  from  the  council.  If  the  grantee 
be  arrested  for  subsequent  violation  of  this  ordinance,  an  action  at  law  for 
damages  will  not  lie,  because  the  ordinance  is  an  exercise  of  the  city's  govern- 
mental powers.  The  grantee  may  proceed  to  restrain  any  interference  with 
his  vested  rights.5 

A  city  or  village  having  no  sewer  system  of  its  own  may  grant  to  a  citizen, 
under  proper  circumstances  and  restrictions,  the  right  to  construct  a  private 

^imes  v.  Jarrett,  26  S.  C.  480.  [1898]. 

2  Westerly   Water-works   v.    Town    of  *  Welsh   v.   Borough    of    Beaver  Falls 

Westerly  (R.  I.  C.  C.),  75  Fed.  Rep.  131.  (Pa.),  40  Atl.   Rep.  784  [1898]. 

And  see  White  v.  Meadville  (Pa.),  35  Atl.  4  Donahue  v.   Morgan  (Colo.),  50  Pac, 

Rep.  695;  Carlisle  Gas  &  W.  Co.  v.  Car-  Rep.  1038  [1897]. 

lisle  W.  Co.,   182    Pa.  St.   17;   Welsh   v.  5  Stevens  v.   Muskegon  (Mich.),  69  N. 

Beaver    Falls    (Pa.),    40   Atl.    Rep.    784  W.  Rep.    227.      • 


§665.  OPERATIONS  PRELIMINARY   TO    CONSl'RUCTION.  456 

sewer  at  his  own  expense  in  the  street,  which  may  be  used  by  him  without 
interference  by  others  without  his  consent.  The  right  to  the  exclusive  use  of 
the  sewer  is  not  affected  by  the  fact  that  the  sewer  is  not  upon  the  side  of  the 
street  specified  in  the  resolution,  where  there  is  obviously  a  clerical  error  in 
the  resolution  in  that  respect. l 

Where  works  that  have  been  erected  and  operated  for  a  long  time  under  a 
franchise  and  agreement  by  which  a  city  is  to  take  light,  heat,  or  power  for  a 
period  of  years,  no  right  to  rescind  for  non-performance  being  reserved,  and 
where  the  works  are  destroyed  without  fault  of  the  owner,  the  city  must  exer- 
cise any  right  it  may  have  to  rescind  the  contract  within  a  reasonable  time, 
and  must  not  wait  until  a  rescission  will  work  a  great  injury  to  the  owner  of 
the  plant.  If  the  city  delay  in  giving  notice  of  such  rescission  until  the  works 
.are  practically  rebuilt,  such  rebuilding  not  having  been  unreasonably  delayed, 
it  may  be  held  to  have  waived  its  rights  to  terminate  the  contract  or  to  repeal 
the  ordinance  granting  the  franchise.2 

665.  License  to  Build  and  Operate  Railroad. — Where  an  owner  of  land 
-allows  a  railroad  company  to  occupy  and  use  it  for  the  construction  of  its 
road  without  remonstrance  or  complaint,  a  grant  may  be  implied  and  the 
landowner  may  be  held  to  have  acquiesced  therein  and  to  have  waived  his 
right  to  dispossess  the  company.3  As  Chief  Justice  Redfield  of  Vermont  has 
.said :  "In  these  great  public  works,  the  shortest  period  of  clear  acquiescence, 
.so  as  to  fairly  lead  the  company  to  infer  that  the  party  intends  to  waive  his 
-claim  for  present  payment,  will  be  held  to  preclude  the  right  to  assert  the 
claim,  or  to  stop  the  company  in  the  progress  of  the  work,  and  especially  to 
stop  the  running  of  the  road  after  it  has  been  put  in  operation  whereby  the 
company  acquires  important  interests  in  its  continuance. "  4  If  the  owner  of 
a  right  of  way  stands  by  while  a  railroad  company  erects  an  expensive  railway 
embankment  over  the  way,  he  cannot  abate  the  obstruction  until  the  railroad 
company  shall  have  a  reasonable  opportunity  to  condemn  the  right  of  way.5 

Where  a  railroad  company  enters  and  constructs  tracks  on  land  under  a 
mere  license  from  the  owner,  it  acquires  no  easement  in  the  land.6  Such 
permission  to  a  railroad  company  to  enter  and  construct  its  road  does  not  give 
title  to  the  right  of  way  or  estop  the  owner  from  maintaining  an  action  for 
•ejectment,  but  the  execution  would  probably  be  stayed  until  the  company 
should  have  had  a  reasonable  time  in  which  to  pay  for  the  right.7  The  owner 
does  not  waive  his  right  to  damages  such  as  would  have  been  recovered  in 
regular  condemnation  proceedings  unless  the  delay  has  been  so  long  that  the 

1  Boyden  v.  Walkley  (Mich.),  4  Det.  L.       Vt.  311. 

N.  420,  71  N.  W.  Rep.  1099.  5  Manning  v.  Port  Reading  R.  Co.  (N. 

2  Mills  v.   Osawatomie  (Kan.),  53  Pac.       J.  Ch.),  33  Atl.  Rep.  802. 

Rep.  470  [1898].  6  Minneapolis    W.    Ry.    Co.   v.    Minne- 

3  19  Amer.  &  Eng.   Ency.  Law  860;  St.       apolis  &  St.   L.   Ry.   Co.   (Minn.),   59  N. 
Julian    v.    Morgan,    etc.,  R.   Co.,   35   La.        W.  Rep.  983. 

Ann.  924.  7  Conger  v.   Burlington,  etc.,   R.  Co., 

4  McAulay  v.  Western  Vt.   R.   Co.,  33       41  la.  419. 


457  LICENSE,  REVOCABLE  AND    IRREVOCABLE. 

right  is  lost  by  the  statute  of  limitations.1  A  parol  license  to  a  railroad  com- 
pany to  use  a  right  of  way  cannot  be  revoked  after  the  expenditure  of  money 
for  the  completion  of  the  road  and  after  its  operation  for  fourteen  years,  nor 
can  one  claiming  under  the  licensor.2 

A  license  to  make  a  roadway  is  exhausted  by  the  first  one  built,  and  the 
licensee  cannot  substitute  a  solid  roadway  for  one  originally  built  by  him  on 
piles.3 

666.  Party-walls,  Stairways,  and  Passageways  etc. — A  license  to  use  the 
wall  of  a  house  as  a  party-wall  in  consideration  that  the  licensee  would  erect 
a  brick  house  instead  of  a  frame  one  was  held  irrevocable  after  the  house  had 
been  built.4    But  an  agreement  that  if  a  man's  neighbor  would  deed  two  extra 
feet  of  ground  he  would  put  a  stairway  wholly  in  his  building,  and  allow  it 
to  be  used  by  the  neighbors,  tenants  of  the  upper  stories,  may  be  abrogated 
and  the  use  of  such  stairway  refused  even  though  the  tenants  have  used  it  for 
several  years,  in  the  absence  of  evidence  that  money  had  been  expended  or 
improvements  made  on  the  strength  of  the  license.5 

A  parol  license  to  float  spars  on  a  stream  for  a  valuable  consideration 
cannot  be  revoked  after  the  grantee  has  acted  upon  it.6  Parol  grants  of  a 
right  of  way  for  a  valuable  consideration  followed  by  use  for  sixteen  years  (the 
statutory  period)  may  not  be  revoked.7  A  license  granted  by  a  city  to  erect 
an  awning  over  the  sidewalk  may  not  needlessly  be  revoked  until  the  licensee 
has  enjoyed  it  sufficiently  for  his  outlay.8 

667.  License  of  Purchaser  to  Enter  and  Take. — Ordinarily  the  purchase 
of  materials  or  structures  located  upon  land  carries  with  it  a  license  to  enter 
and  take  and  carry  away  such  materials  and  structures  in  the  way  and  after 
the  manner  contemplated  by  the  parties.      Such  materials  are  standing  timber, 
sand,  clay,  stone  and  other  minerals,  including  gas  and  oil. 

A  purchaser  of  standing  timber,  who  had  paid  in  full  therefor  and  who  had 
two  years  in  which  to  remove  it,  was  given  by  the  seller  a  parol  extension  of 
two  years  more,  and  it  was  held  that  such  extension  could  not  be  revoked  by 
the  seller  or  his  grantee  with  notice.9 

There  is  little  doubt  but  that  the  licensee  would  have  the  right  to  enter 
upon  the  land  and  take  such  timber  as  he  had  already  cut  without  being  liable 
to  an  action  for  trespass.10  Such  a  license  to  enter  upon  the  land  cannot  be 
countermanded  after  it  has  been  acted  upon. n  According  to  the  Massa- 

1  iq   Amer.    &.    Eng.    Ency.   Law   860,  6  Rhoades  v.  Otis,  33  Ala.  578. 
861,  and  cases  cited;  G.  H.  &  S.  A,  R.  Co.  7  Nowlin  v.  Whippel,  79  Ala.  481. 

v.  Pfuffer,  56  Tex.  66  [1881].  8  City    Council   of    Augusta   v.   Burim 

2  Campbell    v.    Indianapolis,    etc.,    R.       (Ga.),  19  S.  E.  Rep.  820. 

Co.,  no  Ind.  490.     See  also  Buchanan  v.  9  Williams  v.  Flood,  63  Mich.  487. 

Logansport,  etc.,  R.  Co.,  71  Ind.  265.  10  Claflin  v.  Carpenter  (Mass.),  4  Met. 

'Trustees   v.   Jessup  (Sup.),  42  N.  Y.  580. 

Supp.  4.  n  Claflin  z/.Carpenter,  supra;  Nettleton 

4  Russell  v.  Hubbard,  59  111.  335.  v.   Sikes  (Mass.),    8   Met.    34;  Nelson    v. 

5  Baldwin  v.  Taylor  (Pa.  Sup.),  31  All.  Nelson  (Mass.),  3  Gray  85;  Douglass  v. 
Rep.  250.   See  Joseph  v.  Wild  (Ind.  Sup.),  Shumway  (Mass.),  13  Gray  498. 

45  N.  E.  Rep.  467. 


§668.  OPERATIONS  PRELIMINARY    TO    CONSTRUCTION.  458 

chusetts  cases  cited  it  seems  that  the  owner  may  revoke  the  license  in  regard 
to  timber  standing,  but  that  he  may  not  revoke  the  license  with  regard  to 
timber  which  has  been  cut.1 

An  oral  sale  of  a  frarne  building  with  a  right  to  remove  it  was  held  to 
create  an  irrevocable  license  to  enter  and  remove  the  building.  A  grant  of 
an  exclusive  privilege  to  take  wild  fowl  on  the  lakes,  sloughs,  and  waters  of 
the  grantor,  with  the  privilege  of  ingress  and  egress  for  the  purpose,  was  held 
a  grant  of  a  profit  a  prendre. 2 

A  license  to  hunt  at  pleasure  on  the  land  of  the  licensor  was  held  a  justifi- 
cation for  the  entry  of  the  servant  and  companion  of  the  licensee.3 

668,  License  the  Subject  of  Transfer.— It  seems  that  a  license  may  be  the 
subject  of  a  transfer,   and  that  an  assignment  of  a  license  will  be  upheld. 
Thus  where  a  licensee  constructed  a  dock  on  lands  belonging  to  the  state, 
under  license  issued  by  the  superintendent  of  public  works,  and  afterwards 
assigned  the  license  and  transferred  his  interest  in  the  dock,  it  was  held  that 
he  was  estopped  from  denying  his  right  to  make  such  assignment  and  transfer 
in  an  action  brought  by  his  vendees  to  enjoin  the  unlawful  use  of  the  dock.4 
This  right  seems,  however,  to  be  denied  where  the  license  partakes  of  a  per- 
sonal character  or  preferment.      Permission  to  erect  a  house  and  to  occupy  it 
without  molestation  so  long  as  the  licensee  thought  fit  or  his  convenience 
might  require  was  held  a  power  which  could  not  be  transferred  to  a  third 
person  even  after  the  house  had  been  built. 5 

669.  Revocation  of  License. — When  structures  or  works  which  have  been 
erected  by  license  upon  another's  land  are  destroyed  by  the  elements,  the 
licensor  may  then  revoke  the  license  and  extinguish  the  right.     This  was  so 
held  when  an  aqueduct  went  to  decay  and  became  unserviceable.6 

If  the  owner  of  land  appropriates  it  to  uses  which  are  inconsistent  with 
the  enjoyment  of  the  license  which  he  has  granted,  or  if  he,  by  other  acts, 
indicates  an  intention  to  revoke  the  license,  such  acts  will  effect  a  revocation.  7 
The  locking  of  a  gate  through  which  a  person  has  had  a  license  to  pass  is  a 
revocation  of  the  license.  The  commencement  of  an  action  for  damages  may 
constitute  a  revocation,  and  a  license  of  a  partnership  is  revoked  by  the  dis- 
solution of  the  partnership.8  A  mere  parol  license,  not  founded  upon  a 
valuable  consideration,  permitting  water  to  flow  from  a  gutter  onto  an 

1  Giles    v.    Simonds    (Mass.),    15    Gray  418.     And  see   other   cases,    13    Amer.   & 

441;  Burton  v.   Scherpf  (Mass.),   i  Allen  Eng.  Ency.  Law  556. 

135.  6  Allen   v.   Fisk,   42  Vt.    462.     And  see 

2Brigham  v.  Salene,  15  Oreg.  208.  also  Veghte  v.  Raritan  Water-power  Co. 

3  Muskett  v.    Hill,  5  Bing.   N.  €.694;  (N.  J.),  4  C.  E  Greene  142-159;  Morse  v. 

Wickham  v.   Hawker,  7  Mees.  &  W.  63;  Copeland  (Mass.),  2  Gray  302;  Totel  v. 

Doe  v.  Wood,  2  Barn.  &  Aid.  724.  Bonnefoy,  23  111.  App.  55. 

*Ziegele   v.   Richelieu   &  O.   Nav.   Co.  7 Simpson  v.  Wright,  21  111.  App.  67. 

(Sup.),  38  N.  Y.  Supp.  1022.  8I3  Amer.  &  Eng.  Ency.  Law  557. 

6  Jackson  v.  Babcock  (N.  Y.),  4  Johns. 


459  LICENSE,  REVOCABLE  AND    IRREVOCABLE.  §  669. 

adjacent  building,  is  revoked  by  the  conveyance  of  the  adjoining  building, 
without  further  notice.1 

When  the  license  granted  is  of  an  executory  nature  and  the  servient  land 
has  been  conveyed  to  another,  such  conveyance  works  a  revocation  of  the 
license;  but  if  the  license  has  already  been  executed,  it  does  not  affect  the 
rights  of  the  parties  concerned.  Cases  of  executory  licenses  of  the  class 
named  are  those  where  the  person  has  been  granted  a  license  to  go  upon  land 
for  the  purpose  of  cutting  and  taking  timber.  In  case  of  an  oral  license  for 
a  valuable  consideration  to  cut,  within  a  certain  time,  the  trees  standing  upon 
land  which  is  afterwards  conveyed  by  an  absolute  deed  to  a  third  person,  the 
act  of  conveyance  revokes  the  license  to  take  the  timber  that  is  uncut.2 

1  Winn  v.  Ulster  Co.  Sav.  Inst.  (N.  Y.),       Cook  v.  Stearns,  n  Mass.  533;  Jenkins  v. 
37  Hun  349.  Sykes,  19  Fla.  148;  Coleman  v.  Foster,  I 

2  Drake  v.  Wells  (Mass.),  n  Allen  141;      H.  N.  37- 


CHAPTER   XXXIV. 
PRESCRIPTION   AND   PRESCRIPTIVE   RIGHTS. 

671.  Importance  of  Easements  in  Engineering  and  Architectural  Opera- 
tions.— Every  project  or  undertaking  in  engineering  requires  the  acquisition 
and  appropriation  of  property,  and  the  assuming  of  the  burdens  incident  to 
property.  It  comprises  the  erection  and  maintenance  of  a  new  structure,  and 
therefore  a  change  in  existing  conditions  and  circumstances.  If  an  important 
undertaking,  it  may  change  the  surroundings,  the  value  and  character  of 
property  in  the  vicinity,  and  the  uses  and  purposes  for  which  it  may  be 
employed;  it  may  divert  the  course  of  trade  and  traffic,  it  may  be  a  blessing 
to  the  community,  or  it  may  prove  an  intolerable  nuisance.  Injuries  and 
resulting  damages  are  a  certain  consequence  of  every  engineering  work,  and  a 
successful  engineer  must  know  what  constitutes  actionable  injuries,  and  must, 
if  possible,  avoid  them.  The  direct  injuries  to  abutting  property  and  estates 
are  usually  apparent  to  a  cautious  and  observing  engineer  and  may  be  guarded 
against;  but  there  are  other  injuries  none  the  less  troublesome  and  frequently 
more  fatal  to  the  rapid  progress  and  completion  of  works.  They  are  injuries 
to  incorporeal  rights,  invisible,  unobserved,  unrecorded,  sometimes  ancient 
and  far-distant  rights  that  suddenly  issue  from  obscurity  in  the  shape  of  an 
exorbitant  and  extortionate  demand,  or  of  a  threatened  injunction  on  account 
of  some  unthought-of  injury.  A  knowledge  of  these  rights  and  the  anticipa- 
tion of  their  infringement  would  reasonably  be  expected  of  the  engineer  or 
architect  more  than  from  an  attorney  who  frequently  ends  his  labors  with  an 
exhausting  search  of  paper  titles  in  the  registry  office.  The  engineer's  or 
architect's  experience  enables  him  to  anticipate  future  complication  the  result 
of  installation  and  operation  of  works,  and  to  secure  to  the  project  privileges 
and  rights  that  may  be  the  subject  of  expensive  litigation.  He  knows  the 
effects  that  result  from  the  use  of  fuel,  steam,  electricity,  and  the  conditions 
that  attend  the  manufacture  or  use  of  gas,  oil,  chemicals,  and  other  explosive 
agents. 

Many  of  these  rights  are  incorporeal,  and  some  are  not ;  but  even  those  that 
are  corporeal  have  many  of  the  incidents  belonging  to  easements,  and  they 
may  therefore  all  be  considered  together.  The  right  of  an  owner  of  land  to 
the  natural  flow  and  a  reasonable  or  proportional  use  of  water,  light,  and  air 

460 


46 1  PRESCRIPTION  AND    PRESCRIPTIVE   RIGHTS.  §  6/3. 

is  a  natural  corporeal  right  incident  to  property.  If  any  one  prevents  their 
natural  flow  or  destroys  their  native  purity,  he  is  transgressing  the  rights  of 
every  landowner  through  or  against  whose  land  they  would  pass.  These 
rights  are  separable  from  the  land  and  may  be  conveyed  by  or  reserved  from  * 
grant,  or  acquired  by  prescription.  It  is  with  the  latter  that  we  have  here  to 
deal.  What  may  be  said  of  ways  will  in  general  apply  to  waterways,  whether 
a  stream,  a  canal,  a  drain,  or  a  sewer. 

672.  Easements  Acquired  by  Prescription. — These  rights  are  frequently 
acquired  by  prescription,  which  is  closely  allied  and  in  many  respects  similar 
to  the   law  of  limitation.      Prescription  strictly   applies  only  to   incorporeal 
rights;    while   adverse   possession   is   confined   to  corporeal   property.      Both 
are  generally  governed  by  the  same  law  in  this  country — the  law  of  limita- 
tions.    There  are  few  prescription  acts  in  America.     The  whole  doctrine  of 
prescription,  like  that  of  adverse  possession,  is  founded  upon  public  policy. 
It  is  a  matter  of  public  interest  that  title  to  property  should  not  long  remain 
uncertain   and   in   dispute.      The   doctrine   of  prescription  conduces  in   this, 
respect  to  the  interests  of  society,  and  at  the  same  time  is  promotive  of  pri- 
vate justice  by  putting  an   end  and  fixing  a  limit  to  contention  and  strife. 
Strictly  the  statute  of  limitations,  which  governs  adverse  possession,  does  not 
apply  to  these  incorporeal  rights;  but  it  has  become  universally  settled  that 
an  uninterrupted  use  of  a  way  or  other  easement,  under  a  claim  of  right  for 
the  period  fixed  by  the  statute  of  limitations  as  a  bar  to  the  recovery  of  lands 
held  adversely,  gives  the  person  so  using  it  a  full  and  absolute  right  to  such 
easement  as  much  as  if  it  were  granted  to  him.1     If  an  adverse  possession  for 
the  statutory  period  of  limitations  will  give  a  possessory  title  to  the  land  itself, 
it  seems  to  be  only  reasonable  that  it  should  afford  a  right  to  a  minor  interest 
arising  out  of  the  land.3 

673.  Differences  between  Prescription  and  Limitations. — There  is  this 
difference  between  the  statutes  of   limitations  and  the    law  of  prescription. 
The  statutes  of  limitations  declare  that  if  the  owner  has  not  had  possession 
during  a  certain  period,  he  is  barred  from  entering  and  can  have  no  action 
against  the  one  in  possession;  in  prescription  the  claimant  must  have  had  the 
use  and  enjoyment  for  the  full  period  in  order  to  have  any  claims  to  a  con- 
tinued enjoyment.      He  is  then  held  to  be  entitled  to  the  use  of  the  easement 
as  a  matter  of  right,  as  if  holding  under  a  grant  which,  though  implied,  will  be 
upheld  unless  the  presumption  in  its  favor  be  rebutted.     In  adverse  possession 
the  owner  is  refused  the  protection  of  the  courts,  as  having  lost  his  rights;  in 
prescription  the  one  who  has  acquired  the  rights   may  enforce  them  by  the 
assistance  of  the  courts.    In  this  country  it  amounts  to  the  same  thing,  for  the 
owner  will  succeed  as  against  the  trespasser  who  has  not  had  open,  adverse, 
and  continuous  possession  for  the  full  period,  because  his  paper  title  is  con- 
structive possession. 

1  Tracy  v.  Atherton,  36  Vt.  503.  a3  Stark  Ev.  1215. 


§6/5-          OPERATIONS   PRELIMINARY    TO    CONSTRUCTION.  462 

In  the  ordinary  transactions  of  mankind  men  are  not  disposed  to  allow 
others  to  exercise  dominion  over  their  property.  When,  therefore,  such 
dominion  has  been  exercised  for  a  long  period  without  objection  on  the  part 
of  the  owner,  it  is  reasonable  to  conclude  that  such  use  began  in  right  or 
there  would  have  been  objection.  On  this  ground  the  doctrine  of  prescription 
rests.  It  is  purely  a  legal  fiction.  The  doctrine  proceeds  wholly  upon  the 
ground  of  presuming  a  right  after  such  length  of  enjoyment,  and  not  upon  the 
ground  that  a  grant  was  made,  which  has  been  lost.  The  undisturbed  enjoy- 
ment for  the  full  period  imposes  a  duty  upon  the  jury  to  presume  a  grant,  and 
they  will  be  so  instructed  by  the  court.  Not  that  either  the  court  or  the  jury 
believe  there  ever  was  a  grant,  but  because  public  policy  and  convenience 
require  that  long-continued  possession  and  enjoyment  should  not  be  dis- 
turbed. l 

674.  Presumption  after  Use  for  Statutory  Period  Not  Easily  Rebutted, 
— An   owner  cannot   overcome  this   presumption   of  right    arising   from   an 
uninterrupted  user  for  the  statutory  period  by  proof  that  in  fact  no  grant  was 
ever  made.     The  case  is  not  varied  though  it  be  shown  ever  so  clearly.2     The 
presumption  is  so  strong  that,  if  unrebutted,  it  becomes  a  presumption  of  law, 
and  is  such  conclusive  evidence  as  to  warrant  the  court  in  holding  that  it  con- 
fers a  right  on  the  possessor  to  the  full  extent  of  his  user. 1     An  owner  may 
rebut  the  presumption  by  contradicting  or  explaining  the  facts  upon  which  it 
rests;  he  may  show  that  the  right  claimed  could  not  have  been  granted  away, 
or  that  the  owner  was  incapable  of  making  such  a  grant.      He  may  explain 
the  user  or  enjoyment  by  showing  that  it  was  made  under  permission  asked 
and  given,  or  that  it  was  secret,  or  that  the  user  was  such  as  to  be  neither 
physically  capable  of  prevention  nor  actionable.3 

By  analogy  the  courts  have  made  the  law  of  prescription  conform  in  all 
substantial  particulars,  and  in  so  far  as  the  differences  in  the  subjects  will 
allow,  to  the  statute  of  limitations  applicable  to  lands.4  It  may  be  laid  down 
as  a  general  rule  that  the  use  and  enjoyment  of  an  easement  or  incorporeal 
right  affecting  the  lands  of  another  for  the  local  statutory  period  is  sufficient 
to  establish  a  good  right  and  title  by  prescription.5  The  use  and  enjoyment 
necessary  to  acquire  an  easement  by  prescription  is  the  same  as  is  required  to 
give  the  title  under  the  statute  of  limitations.  A  prescriptive  right  once 
acquired  is  absolute,  and  cannot  be  lost  or  prejudiced  by  any  acknowledg- 
ment on  the  part  of  the  possessor.6 

675.  The  Use  should  be  by  Acquiescence  and  Not  by  Force. — The  use 
must  be  open,   adverse,    under  claim  of   right,    exclusive,   continuous,    and 

1  Tracy  v.  Atherton,  36  Vt.  503.  *  Poland,  Ch.  J.,  Tracy  v.  Atherton,  36 

2Lehigh  V.    Ry.   Co.   v.  McFarlan,  43       Vt.  503. 

N.    J.    Law    605;  Tracy  v.    Atherton,  36  5  Parker  v.  Foote,  19  Wend.  309. 

Vt.  503.  6Weed  v.    Keenan  (Vt.).    13  Atl.    Rep. 

'Lehigh  V.    Ry.  Co.  v.  McFarlan,  43       804   [1888];  Hathorn    v.    Kelly,    86   Me. 
N.  J.  Law  605.  487- 


463  PRESCRIPTION  AND    PRESCRIPTIVE  RIGHTS.  §  676. 

uninterrupted.1  To  these  sometimes  are  added  the  further  qualifications  that 
it  must  be  by  acquiescence  and  not  by  force.  Acquiescence  as  here  used  is 
understood  to  mean  that  there  was  knowledge  and  that  there  has  been  no 
interruption.  If  the  owner  does  not  interrupt  the  enjoyment  in  any  way,  he 
does  acquiesce  so  far  as  is  needful  in  order  to  make  the  possession  effectual 
against  him.2 

What  is  understood  by  force  requires  no  explanation,  but  what  degree  of 
contention  or  warfare  will  deprive  the  claimant  of  his  right  is  an  extremely 
difficult  question.  Contention  being  a  usual  consequence  of  interruption,  it 
will  perhaps  be  appropriately  discussed  in  connection  with  that  subject.* 

When  one  has  proved  use  by  the  plaintiff  and  the  general  public  of  g 
passageway  over  land  for  forty  years,  the  burden  is  on  the  defendant  to  show 
that  the  use  was  permissive  merely.3 

676.  The  Prescriptive  Use  must  be  Open  and  Adverse  and  Not  Inter- 
rupted. \ — The  general  interpretation  of  the  words  "open,  adverse,  under  clainv 
of  right,"  is  practically  the  same  as  in  adverse  possession.  The  use  or  enjoy- 
ment must  not  be  in  secret  or  by  stealth ;  it  must  not  be  by  leave,  favor,  o\ 
license,  but  under  claim  or  assertion  of  right.  It  must  not  be  by  force,  noi 
be  interrupted  for  the  full  period  of  limitation.4  There  must  be  neither  legal 
incompetence  nor  physical  incapacity;  and  finally,  the  enjoyment  or  use 
must  be  such  a  burden  or  injury  to  the  servient  estate  as  to  be  actionable  and 
capable  of  being  prevented  by  the  owner.  If  these  conditions  are  claimed 
and  proved  by  the  person  claiming  the  easement,  his  right  to  the  continued 
enjoyment  of  the  same  rights  cannot  be  defeated. 

Two  things  are  inseparable  incidents,  viz.,  possession  or  user  and  lime. 
The  user  must  be  long,  continuous,  and  peaceable;  long,  that  is,  during  the 
time  prescribed  by  law;  continuous,  that  is,  it  must  not  have  been  interrupted 
according  to  the  lawful  meaning  of  the  word;  peaceable,  because  if  it  be  con- 
tentious, and  the  opposition  be  on  good  grounds,  the  party  will  be  in  the  same 
position  as  at  the  beginning  of  his  use.5 

The  use  must  be  open  and  notorious.  In  a  recent  case  it  was  held  that 
the  fact  that  a  building  stood  partly  upon  another's  land  and  overhung  it  so 
that  the  water  from  the  eaves  dropped  upon  it  was  not  patent  to  the  owner, 
and  therefore  no  easement  had  been  acquired  by  adverse  user. 6  J  A  prescrip- 
tive right  to  have  water  drop  from  one's  eaves  upon  another's  land  is  not  de- 
stroyed by  raising  the  roof  so  that  the  eaves  are  higher  from  the  ground,  in  the 
absence  of  proof  that  the  burden  has  been  increased.7  The  signs  of  the  servi- 

1  Tracy  v.  Atherton,  36  Vt.  503.  5Lehigh  Valley  R.  R.  Co.  v.  McFarlan, 

2 Tracy  v.   Atherton,   36  Vt.  503;  Rich-  43  N.  J.  Law  605. 

ard  v.  Hupp(CaL),  37  Pac.  Rep.  920.  6  Reiner    v.   Young  (N.    Y.),   16   N.    E. 

3  Burch  v.  Blair  (Ky.),  41  S.  W.   Rep.  Rep.  368  [1888]. 

547.  7  Harvey  v.  Walters;  L.  R.  8  C.  P.  Cas. 

*  Parker    v.     Foote,      19    Wend.     309;  162  [1872]. 
Vaughan  v.  Rupple,  69  Mo.  App.  583. 

*  See  Sees.  529-531,  supra.  \  See  Sees.  515-525,  supra. 

\  See  Sec.  183,  supra. 


§678.  OPERATIONS  PRELIMINARY    TO    CONSTRUCTION.  464 

tilde,  the  marks  of  the  burden,  should  be  open  and  visible.1* 

677.  The  Use  Must  Not  be  Interrupted. — To  constitute  interruption,  the 
law  requires  some  obstruction  to  the  use  of  the  easement,  some  act  of  inter- 
ference with  its  enjoyment,  which  if  unjustified  would  be  an  actionable  wrong 
and  sufficient  cause  for  the  claimant  to  come  into  court.      Mere  denials  of 
right,  complaints,  remonstrances,  prohibitions,  and  threats  will  not  be  con- 
sidered as  interruptions  of  the  user,  or  indicate  that  the  enjoyment  of  it  was 
contentious;    there   must  be  an   actual   interruption  or   obstruction    of   the 
enjoyment.      If  the  owner  interrupt  the  enjoyment  of  the  easement  and  the 
one  claiming  it  really  has  any  right  to  it,  he  should  assert  it  by  an  action  at 
law;  and  if  he  chooses  to  postpone  his  action  until  witnesses  are  dead  and 
the  facts  have  faded  from  recollection,  he  has  only  himself  to  blame. 

To  acquire  a  right  of  way  over  lands  by  prescription  the  use  must  have 
been  adverse  for  the  full  statutory  period.2  The  use  must  be  continuous  for 
the  full  statutory  period  or  longer  to  create  an  easement  of  a  right  of  way,3  or 
of  drainage  in  a  ditch,4  or  of  a  bridge  over  a  canal.5 

678.  What  will  Amount  to  an  Interruption. — Mere  protests  and  denials 
by  the  owner  do  not  interrupt  an  adverse  user  because  they  give  the  claimant 
no  right  to  sue  and  establish  his  right.      If  protests  and  remonstrances  could 
deprive  one  of  his  continuous  and  adverse  enjoyment,  he  could  neither  assert 
his  right  by  an  action  at  law,  nor  have  the  advantage  accorded  him  by  the 
aw  as  consequent  to  such  enjoyment.      Protests  and  remonstrances  by  the 
owner  against  the  use  of  the  easement  rather  add  strength  to  the  claim  of  a 
prescriptive  right,  for  a  holding  in  defiance  of  such  expostulations  is  demon- 
strative proof  that  the  enjoyment  is  under  a  claim  of  right,  and  is  hostile  and 
adverse;  and  if  they  be  not  accompanied  by  acts  amounting  to  a  disturbance 
of  the  right  in  a  legal  sense,  they  are  no  interruption  or  obstruction  of  the 
enjoyment.6 

What  degree  of  force  by  the  owner  and  counter-resistance  by  the  claimant 
must  be  exercised  to  make  an  enjoyment  contentious  or  by  force  must  depend 
upon  the  particular  circumstances  of  each  case.  It  seems  that  there  must  be 
a  pronounced  determination  on  the  part  of  the  owner  to  interrupt  the  enjoy, 
ment,  and  that  little  short  of  violence  will  accomplish  it.  If  the  owner  has 
not  sought  the  protection  of  the  courts,  but  has  relied  upon  himself  to  inter- 

1  Griffiths  v.  Morrison,  106  N.  Y.  165;  5Tytus  Gardner  Paper  Co.  v.   Middle- 
Rogers  v.  Sinsheimer,  50  N.  Y.  646.  town   Hyd.    Co.,   15  Ohio  Cir.   Ct.   Rep. 

a  Prewitt  v.    Graves   (Ky.),    35    S.    W.  118. 

Rep.  263;  Young  v.  Conrad  (Ky.),  38  S.  6  Lehigh  V.   Ry.  Co.  v.   McFarlan,  43 

W.  Rep.  497;  Gatewood  v.  Cooper  (Ky.),  N.  J.  Law  605.     Accord,  Okeson  v.   Pat- 

38  S.  W.  Rep.  690.  terson,   29   Pa.   St.   22   [1857];  Jordan  v. 

3 Chicago     v.     Howes,     169*  111.     260;  Lang,    22    S.    C.    159   [1884];  Connor    v. 

Bushey   v.  Sautiff  (Sup.),  33  N.  Y.  Supp.  Sullivan,    40   Conn.    26    [1873].      Contra^ 

473.  Chicago  &  N.  W.  R.  Co.  v.  Hoag,  90  111. 

*Wilkins   v.    Nicolai,  74  N.  W.    Rep.  339  [1878]. 
103. 

*  See  Sec.  183,  supra. 


465  PRESCRIPTION  AND   PRESCRIPTIVE   RIGHTS.  §  6bO. 

nipt  the  adverse  use  and  has  failed,  he  must  show  an  endeavor  to  repel  and 
expel  the  claimant  by  violence,  and  if  unsuccessful  he  must  show  a  continued 
diligence  and  persistence.  There  must  be  force,  strife,  violence,  and  if  the 
owner  fails  by  these  to  effect  an  interruption,  he  should  appeal  to  the  courts. 
It  cannot  be  said  with  certainty  that  perpetual  warfare  even  will  relieve  the 
servient  estate  from  the  burden  of  the  easement  if  no  actual  interruption  has 
been  accomplished.  This  seems  to  be  the  doctrine  of  the  English  cases, 
where  peacefulness  and  acquiescence  are  used  indifferently  as  equivalent  to 
non-interruption. 

679.  Instances  of  Interruption. — A  few  illustrations  will  serve  to  give  a 
better  idea  of  the  law  as  to  easements  acquired  by  adverse  use  and  enjoyment. 
Some  in  respect  to  rights  of  way  are  the  following:  A  sign  notice  "  No  tres- 
passing "  will  have  no  effect  to  interrupt  or  deprive  the  claimant  of  the  benefit 
of  his  enjoyment.      Mere  temporary  obstructions  due  to  erecting  a  house,  but 
with  no  intention  of  stopping  the  way,  which  is  subsequently  repaired  and 
reopened,  will  not  amount  to  an  interruption.      Whether  what  occurs  at  the 
time  an  interruption  is  attempted  amounts  to  an  interruption  depends  upon 
circumstances,  upon  the  conduct  of  the  party  when   forbidden  to  enter  or 
when  ordered  away.      If  the  claimant  when  ordered  away  or  threatened  with 
expulsion  deserts  or  withdraws,   on  a  well-grounded    apprehension  that  the 
owner  means  to  enforce  obedience  to  his  commands,  an  action  for  disturbance 
will  lie.      He  should  therefore  bring  such  action  and  be  put  in  possession  of 
the  enjoyment  of  his  rights.      If  he  does  not,  it  is  evident  that  he  has  no  such 
right  and  it  amounts  to  an  interruption.      If  the  trespasser  turns  back  when 
threatened,  he  may  be  said  to  have  yielded  and  to  have  forfeited  his  rights 
acquired  by  adverse  enjoyment  up  to  that  time.      His  adverse  use  has  been 
relinquished,  and  he  has  acknowledged  the  owner's  superior  right.      The  user 
begins  anew  and  must  be   adversely  and   continuously  enjoyed  for  the   full 
period  from  the  interruption,  and  without  subsequent  hindrance. 

680.  Method  or  Means  of  Interruption. — The  manner  of  obstruction  does 
not  matter;  if  a  house  be  placed  over  the  way,  or  a  board,  or  a  wire  even  be 
placed  with  an  intention  to  obstruct  the  way,  and  it  does  successfully  inter- 
rupt the  use  of  it,   it  is  sufficient.      For   this  reason  one   sometimes   meets 
obstruction  in  streets  of  cities  where  private  streets  are  fenced  to  prevent  the 
public  from  acquiring  rights  over  them.      This  is  a  common  occurrence  in 
Massachusetts.     The  obstruction  need  remain  but  a  few  days,  long  enough 
to  amount  to  an  assertion  of  the  owner's  dominion  over  the  street,  and  to 
give  the  city,  or  the  public,  or  the  individual  good  cause  for  an  action  at  law. 
With  this  end  in  view,  it  is  the  practice  of  large  corporations  and  universities 
to  build  fences  or  to  otherwise  obstruct  certain  avenues  and  streets  in  order 
to  maintain  their  control  over  them.      If  the  encroachment  by  the  public  has 
been  casual  and  without  claim  of  right,  the  owner  may  move  his  fence  to  the 


§  68 1.          OPERATIONS  PRELIMINARY    TO    CONSTRUCTION.  466 

boundary-line  of  the  highway  when  the  encroachment  is  brought  to  his 
notice.1 

681.  Prescriptive  Rights  Limited  to  the  Prescriptive  Use. — To  obtain  a 
prescriptive  right,  the  enjoyment  must  have  been  the  same  as  the  right  which 
is  claimed,  and  of  the  same  object,  throughout  the  whole  period.  The  adverse 
user  of  a  way  must  have  been  continuously  over  the  same  route;  it  must  have 
been  a  burden  upon  the  same  portion  or  part  of  the  servient  property;  the 
enjoyment  must  have  been  for  the  same  purposes  and  to  the  same  extent;  and 
when  acquired  the  right  is  still  limited  to  the  extent  of  the  enjoyment  exer- 
cised at  the  beginning.  No  greater  burdens  can  be  claimed  than  the  continued 
user  has  created.  Prescriptive  rights  when  acquired  are  confined  to  the  extent 
and  purposes  employed  to  acquire  them.  Therefore  the  acquisition  of  a  right 
of  way  from  a  house  on  one  tract  of  land  over  another  tract  will  not  entitle 
the  person  to  move  his  house  upon  an  adjoining  estate  and  claim  his  right  of 
way  over  the  servient  estate  from  the  new  location  of  his  house.2  He  is  a 
trespasser  if  he  attempt  to  use  the  right  of  way  from  the  new  site.  He  can 
come  to  the  original  site  of  his  house,  and  make  a  new  departure  over  the 
servient  estate,  but  the  burdens  must  not  be  increased. 

The  same  principle  applies  if  he  has  bought  adjoining  property  for  a 
garden.  He  may  not  draw  the  produce  from  the  garden  over  the  servient 
estate  directly  without  being  a  trespasser,  but  he  may  bring  vegetables  to  his 
house,  load  them  into  wagons,  thus  making  a  new  point  of  departure,  which 
is  within  his  prescriptive  right.3  Hay  grown  upon  an  adjoining  farm  but 
stacked  upon  the  estate  to  which  a  right  of  way  was  appurtenant  can  be 
carried  over  the  servient  estate,  since  the  use  was  from  the  dominant  estate 
over  the  subordinate  estate.4  The  use  of  a  right  of  way  to  a  woodhouse  or 
well  cannot  be  continued  and  converted  into  a  way  to  a  dwelling-house  when 
the  woodhouse  is  converted  into  a  cottage  or  dwelling-house.5  Nor  can  a 
way  for  horses,  carts,  and  carriages  be  made  a  right  of  way  for  all  purposes. 
The  extent  of  the  right  is  a  question  for  the  jury,  under  all  the  circumstances 
of  the  case.6  A  use  acquired  for  all  purposes  for  which  a  road  was  wanted  at 
the  time  does  not  establish  a  right  of  way  for  all  purposes  in  an  altered  con- 
dition of  the  property  which  would  impose  a  greater  burden  on  the  servient 
estate. 

Whether  the  use  is  within  the  rights  acquired  is  a  question  for  a  jury,  and 
may  therefore  vary.7  Thus  where  a  person  has  a  right  of  way  from  one  of  his 
lots  to  another  across  another  man's  fields,  and,  instead  of  going  entirely 

1  The  State  v.  Schilb,  47  la.  611.  [1867]. 

2  Skull  v.   Glenister,   16  C.   B.  (N.   S.)  5  Allan  v.  Gomme,  n  A.  &  E.  759. 

81  [1862];  Williams  v.  James,  L.  R.  2  6  Cowling  v.  Higginson,  4  M.  &  W. 

C.  P.  577  [1867].  245. 

8Hoyt  v.  Kennedy  (Mass.),  48  N.  E.  7  Skull  v.  Glenister,  i6C.  B.  (N.  S.)  81 

Rep.  1073  [1898].  [1862];  Koons  v.  McNamee,  6  Pa.  Super. 

*  Williams  v.   James,  L.  R.  2  C.  P.  577  Ct.  445. 


467  PRESCRIPTION  AND   PRESCRIPTIVE   RIGHTS.  §  68 1. 

across  the  servient  estate  to  his  own  lot,  he  takes  a  public  road  which  his 
right  of  way  crosses,  and  goes  to  town,  it  has  been  held  that  he  is  not  liable 
to  an  action  of  trespass,  although  the  right  of  way  is  to  the  other  lot  and  not 
to  the  highway. 1  This  establishes  the  principle  that  the  dominant  owner  may 
decrease  the  burdens  of  the  servient  estate  though  he  may  not  increase  them. 
Where  a  man  purchased  an  adjoining  estate  with  an  appurtenant  way  over  a 
third  party's  land  and  drew  building  materials  over  the  way  to  the  estate 
bought,  but  which  were  eventually  used  for  a  house  upon  his  original  land,  it 
was  held  to  be  a  question  for  the  jury  to  decide  whether  the  use  was  a  bona  fide 
exercise  of  the  right  of  way  or  a  mere  colorable  mode  of  getting  to  his  own 
estate.2  Likewise  a  use  for  ordinary  agricultural  purposes  does  not  establish 
a  right  of  way  for  carting  materials  to  build  a  number  of  new  houses.  The 
burdens  must  not  be  increased  or  the  nature  of  the  use  changed. 3 

In  the  case  of  a  dam,  the  easement  acquired  is  not  the  right  of  maintain- 
ing a  dam  or  structure  upon  the  land  of  the  party  himself,  but  the  right  to 
flow  back  the  water  on  the  land  of  his  neighbor.  His  neighbor  has  no  right 
of  action  for  the  mere  building  of  the  dam,  unless  it  throws  the  water  back 
upon  his  land;  his  suffering  it  is  no  acquiescence  in  anything  from  which  a 
grant  or  permission  can  be  presumed. 

No  one  is  bound  to  measure  the  dam  of  an  adjoining  proprietor  and 
employ  an  engineer  to  calculate  whether,  if  kept  tight,  it  will  flood  his  land. 
Where  it  does  and  he  permits  it  for  twenty  years,  a  grant  will  be  presumed, 
but  this  only  to  the  extent  to  which  his  land  was  habitually  or  usually  over- 
flowed.4 

Where  a  dam  is  a  permanent  structure  it  is  not  necessary  that  the  water 
confined  by  it  should  be  maintained  at  the  highest  level,  nor  that  the  dam 
should  always  be  kept  in  perfect  repair.  It  is  the  height  of  the  water  ordi- 
narily behind  the  dam,  when  kept  in  repair  as  dams  are  kept  for  profitable  and 
economical  use,  that  will  fix  the  height  acquired  by  prescription.  If  a  dam  is« 
permitted  for  one  or  more  years  to  be  out  of  repair,  so  as  to  injure  the  land 
above  it,  that  time  will  not  be  counted  in  the  prescription;  the  prescription  is, 
interrupted  and  must  commence  anew.  This  rule  applies  only  to  such  dams 
as  are  permanent  and  to  such  gates  and  movable  parts  as  are  constantly  used 
and  kept  in  their  places  to  raise  the  height  of  the  water.  Boards  or  gates  that 
are  used  only  at  intervals  and  in  seasons,  of  low  water,  so  as  to  increase  the 
water  in  the  mill-pond,  without  overflowing  the  lands  above,  cannot  gain  the 
right  to  keep  the  dam  at  the  height  to  which  they  raise  it,  if  that  will  make 
the  level  of  the  water  upon  the  lands  of  the  upper  proprietor  higher  than  has 
been  maintained  for  the  period  of  twenty  years. 

1  Colchester  v.  Roberts,  4  M.  &  W.  769.       Ch.  D.  362. 

2  Skull  v.  Glenister,  16  C.  B.  (N.  S.)  81  4  Carlisle   v.   Cooper,  10  N.  J.   Eq.   256 
[1862].                                                                        [1868]. 

I  Wimbledon  Conservators  v.  Dixon,  i 


§682.          OPERATIONS  PRELIMINARY   TO    CONSTRUCTION.  468 

When  an  easement  to  flow  water  is  claimed  by  adverse  enjoyment,  the 
whole  burden  of  proof  is  on  the  claimant. x 

Where  a  person  has  adversely  used  a  wooden  drain  across  another's  lot, 
the  laying  by  him  of  an  earthen  drain  inside  thereof  does  not  interrupt  the 
running  of  the  statute  of  limitations  in  favor  of  his  easement  therein.  The 
fact  that  the  earthen  pipe  was  laid  at  the  joint  expense  of  the  owners  of 
the  servient  and  of  the  dominant  estates  does  not,  as  a  matter  of  law,  prevent 
the  use  of  it  by  the  latter  from  being  adverse.  The  fact  that  during  part  of 
such  adverse  user  he  used  it  for  the  drainage  of  additional  waters  does  not 
affect  his  prescriptive  right  to  its  use  for  ordinary  purposes.2 

Where  a  railroad  company  takes  possession  of  the  real  estate  of  another 
for  a  right  of  way  without  color  of  title,  its  rights  acquired  by  prescription 
are  limited  to  the  land  actually  occupied,  as  there  is  no  presumption  that  it 
appropriated  a  strip  of  the  usual  width,  or  all  that  the  statute  allows  it  to  take 
for  that  purpose.3 

682.  Prescriptive  Rights  against  the  State  or  the  Public.* — At  common 
law  there  could  be  no  prescriptive  right  acquired  against  the  crown,  and  the 
same  principle  applies  to  adverse  possession.  Adverse  possession  cannot  be 
held  against  the  United  States,  or  against  a  state,  unless  the  statute  expressly 
includes  the  state  in  its  operations.  States  having  such  statutes  are 
Alabama,  Arizona,  Dakota,  Kansas,  Maryland,  Nevada,  New  York,  Pennsyl- 
vania, South  Carolina,  and  Utah.  The  public  are  protected  from  the  action 
of  the  statutes,  and,  generally  speaking,  adverse  possession  does  not  give  title 
to  property  against  the  public.  Therefore,  whether  a  highway,  a  park,  or  a 
navigable  stream  be  regarded  as  belonging  to  the  government  or  to  the 
public,  a  person  can  gain  no  title  or  adverse  claim  by  encroachments  upon 
such  public  properties.  Such  encroachments  by  private  parties  may  be 
removed  by  the  government  or  town  authorities.  There  has  been  much  con- 
flict in  the  courts  as  to  how  far  to  apply  the  doctrine  of  public  interests  to 
property  belonging  to  municipal  corporations  and  as  to  whether  to  regard 
their  streets  and  parks  as  private  property  or  as  being  vested  in  the  public. 

If  the  claim  by  adverse  possession  is  one  against  public  interests,  the  best 
of  reasons  exist  that  it  should  not  be  permitted.  Every  member  of  a  com- 
munity should  be  interested  in  preserving  the  public  interests,  and  no  one 
person  can  properly  be  allowed  to  appropriate  the  property  of  the  public. 

Nevertheless  we  find  that  many  of  the  states  give  the  right  of  adverse 
possession  to  individuals  against  municipal  corporations.  Connecticut, 
Illinois,  Iowa,  Kentucky,  Maryland,  Massachusetts,  Mississippi,  Missouri, 

Carlisle  v.  Cooper,  19  N.    J.    Eq.   25  N.  E.  R'ep.  197. 

[7868];  A.  P.  Cook  Co.  v.  Beard  (Mich.),  'Omaha  &  R.  V.  Ry.  Co  v.   Richards 

65  N.  W.  Rep.  518.  (Neb.),  57  N.  W.  Rep.  739;  Ryan  v.  M.  V. 

*Shaughnessey   v.    Leary  (Mass.),    38  &  S    I.  R.  Co.,  62  Miss.  162  [1884]. 

*  See  Sec.  534,  supra. 


469  PRESCRIPTION  AND    PRESCRIPTIVE  RIGHTS.  §  683. 

North  Carolina,  New  York,  Ohio,  South  Carolina,  Texas,  Vermont  and  Vir- 
ginia are  among  those  granting  such  adverse  claims.  California,  Indiana, 
Louisiana,  New  Jersey,  Pennsylvania  and  Rhode  Island  hold  to  the  contrary 
rule. 

While  the  title  to  public  land  is  still  in  the  United  States  no  adverse 
possession  of  it  can,  under  a  state  statute  of  limitations,  confer  a  title  which 
will  prevail  in  an  action  of  ejectment  in  the  courts  of  the  United  States  against 
the  legal  title  under  a  patent  from  the  United  States.1 

It  being  a  rule  of  property  in  California  that  title  cannot  be  acquired  to 
public  property  by  adverse  possession,  the  right  of  a  city  to  open  up  a  street 
once  dedicated  and  accepted  is  not  impaired  by  the  fact  that  it  has  been  fenced 
for  about  forty  years,  and  occupied  as  a  residence  the  greater  part  of  the  time, 
and  that  valuable  buildings  have  been  erected  upon  it.2 

683.  Prescriptive  Rights  Acquired  by  the  Public  in  Ways. — There  is 
some  question  whether  mere  user  by  the  public  of  a  way  can  make  it  a  public 
highway,  without  any  action  of  the  town  authorities,  such  as  laying  out, 
recording,  improving,  or  accepting  it.  It  is  certain,  however,  that  any  use 
for  a  period  less  than  that  required  by  the  statute  of  limitations  will  not  estab- 
lish it  as  a  highway.3 

To  establish  a  highway  by  prescription  there  must  be  a  user  by  the  public, 
under  claim  of  right,  and  adverse  to  the  owner's  occupancy,  and  with  his 
knowledge,  of  some  denned  track  uninterruptedly,  without  substantial  change, 
for  a  period  sufficient  to  bar  an  action  to  recover  the  land.4 

The  use  for  hunting  purposes  of  streams  terminating  in  private  lands 
creates  no  right  in  the  public  when  the  lands  have  not  been  staked  nor  such 
trespasses  forbidden.5 

Permission  to  residents  and  visitors  to  pass  over  land  to  visit  a  beach  does 
not  of  itself  constitute  such  user  as  will  make  a  highway  by  prescription. 
To  constitute  a  highway  by  prescription,  user  must  be  adverse  to  the  owner.6 
It  is  necessary  that  the  public  authorities  take  possession  of  the  road,  use, 
improve,  and  maintain  it  for  the  statutory  period,  to  give  it  public  character.7 

If  the  use  is  shown  to  have  been  enjoyed  for  the  full  period,  and  the 
owner  claims  it  was  by  license,  the  burden  is  upon  him  to  show  that  the  use 
was  by  permission  and  not  adverse.  The  fact  that  the  owner  uses  the  same 
way  does  not  lessen  the  claimant's  right.8  A  contrary  rule  is  held  in  Cali- 

1  Redfield  v.  Parks,  132  U.  S.  239  [1889].       Rep.  560. 

2  London  &  San  Francisco  Bank  v.  City          6  Chisolm  v.  Cains  (C.  C.),  67  Fed.  Rep. 
of   Oakland    (C.    C.),    86     Fed.    Rep.    30       285. 

[1898].  6Coburn  v.  San  Mateo  County  (C.  C. 

3Coakleyz/.  Boston, etc.,  R.  Co.  (Mass.),  N.  D.  Cal.),  75  Fed.  Rep.  520. 

33  N.  E.  Rep.  930;  State  v.  Wolfe  (N.  C.),  T  State  v.  Horn  (Kans.),   12    Pac.   Rep. 

17  S.   E.   Rep.   528;    In  re  a   bridge,   100  148  [1887];  Leonard  v.  Detroit  (Mich.),  66 

N.   Y.   642   [1885];    Cunningham    v.    San  N.  W.  Rep.  488. 

Saba  Co.  (Tex.),  20  S.  W.  Rep.  941.  8Wengerz>.  Hippie  (Pa.),  13  All.   Rep. 

*Engle  v.  Hunt  (Neb.),  69  N.  W.  Rep.  81  [1888]. 
070;  Topeka   v.  Cowee  (Kans.),  29  Pac. 


§683.          OPERATIONS  PRELIMINARY   TO   CONSTRUCTION.  4/O 

fornia,  where  the  fact  that  a  strip  of  land  has  been  continuously  traveled  and 
used  by  the  general  public  as  a  highway  for  twenty  years,  with  the  knowledge 
of  the  owner  of  the  fee,  and  without  objection  by  him,  does  not  justify  a  find- 
ing that  the  strip  "is  a  public  highway,"  since  such  facts  are  consistent  with 
an  absence  of  intention  to  dedicate  and  may  indicate  merely  a  license.1 
Under  revised  statutes  of  Indiana,  providing  that  when  a  way  has  been  used 
by  the  public  for  twenty  years,  it  shall  be  deemed  a  public  highway,  the 
uninterrupted  use  of  a  road  for  such  time,  whether  with  the -owner's  consent 
or  against  his  objection,  constitutes  it  a  public  highway.2 

Laws  of  New  York  1890,  c.  568,  §  100  (General  Highway  Law)  provides 
that  "  all  roads  which  shall  have  been  used  by  the  public  as  a  highway  for  a 
period  of  twenty  years  or  more  shall  be  a  highway  with  the  same  force  and 
effect  as  if  it  had  been  duly  laid  out  and  recorded. "  This  law  is  of  the  same 
purport  and  meaning  as  the  former  statute,  which  provided  that  "all  roads 
not  recorded  which  have  been  or  shall  have  been  used  as  a  public  highway  for 
twenty  years  or  more  shall  be  deemed  public  highways  ";  and  use  of  a  road 
by  the  public  as  a  highway  is  necessary  to  create  a  highway  by  prescription.* 
Where  plaintiff's  grantor,  more  than  fifty  years  ago  secured  from  the  state  by 
petition,  a  grant  authorizing  the  extension  of  a  boat-landing  on  his  land  for 
"  public  convenience,"  which  necessitated  the  use  of  a  certain  road  from  the 
boat-landing  to  the  highway,  and  the  road  has  ever  since  been  used  by  the 
public,  such  road  has  become  a  public  highway  by  long  user.4 

In  Illinois,  where  a  highway  was  laid  out  by  the  town  authorities,  and  the 
landowners  erected  fences  so  as  to  make  the  highway  forty  feet  further  east 
than  as  laid  out,  and  the  public  used  the  highway  as  so  fenced  for  more  than 
twenty  years,  the  right  of  the  landowners  to  fence  in  the  forty-foot  strip  is 
barred  by  prescription.5 

To  what  extent  the  public  may  acquire  a  prescriptive  right  of  way  over 
land  depends  in  a  measure  upon  the  character  of  the  land,  its  location,  and 
the  uses  for  which  it  may  reasonably  be  employed.  The  public  acquires  no 
rights  by  mere  user  of  a  way  over  wild,  unimproved,  unoccupied,  and 
uninclosed  prairie,  mountain,  or  forest  lands.6 

The  fact  that  a  landowner  has  permitted  for  a  long  period  of  years  the 
residents  of  the  neighborhood  to  pass  over  his  land  to  an  attractive  beach  on 
the  seashore,7  especially  where  the  use  has  been  occasional  and  varying  and 

1  Cooper  v.  Monterey  County  (Cal.),  38  8  Cunningham  v.  San  Saba  Co.  (Tex.), 
Pac.  Rep.  106.  20  S.  W.  Rep.  941;  Engle  v.  Hunt  (Neb.), 

2  Brown  v.  Hines  (Ind.  App.),  44  N.  E.  69  N.   W.    Rep.  970;    People  v.    Osborn 
Rep.  655.  (Sup.),  32  N.  Y.  Supp.  358;  Kurtz  v.  Hoke 

'People    v.    Osborn    (Sup.),  32    N.    Y.  (Pa.),  33  Atl.  Rep.  549. 

Supp.  358.  7  Coburn  v.  San  Mateo  Co.  (C.  C.),  75 

*  Iselin  v.  Starin  (Sup.),  24  N.  Y.  Supp.  Fed.  Rep.    520;  Mills  &  Allen  v.    Evans 

748.  (la.),   69  N.   W.    Rep.    1043;   Borough   v. 

5Lrnders  v.  Town    of   Whitefield  (111.  Alleghany  Val.   R.   (Pa.),    25  Atl.    Rep. 

Sup.),  39  N.  E.  Rep.  656.  518. 


471  PRESCRIPTION  AND    PRESCRIPTIVE   RIGHTS.  §  685. 

only  at  certain  periods  or  seasons,  cannot  be  held  a  sufficient  use  to  give  the 
public  a  right  of  way  by  prescription.1 

A  way  cannot  be  established  over  another's  ground  by  prescription,  where 
it  shifts  from  one  place  to  another  as  to  any  part  of  the  route,  but  the  same 
ground  must  be  occupied  all  the  while,  and  the  way  kept  in  repair  on  that 
ground.2  While  the  use  must  be  of  substantially  the  same  road  all  the  time, 
the  fact  that  the  track,  by  reason  of  washing  or  other  causes,  by  consent  of 
the  users  of  it,  changes  a  few  feet,  sometimes  to  one  side  of  the  space 
appropriated,  and  sometimes  to  the  other,  does  not  destroy  the  right.3 

684.  Encroachments  upon  Public  Ways. — Surveyors  and  engineers  most 
frequently  meet  with  incorporeal  rights  in  running  out  old  roads  and  streets, 
and  in  the  location  and  maintenance  of  new  ways,  whether  highways,  canals, 
or  railways.      A  frequent  case   is  when  encroachments    have  been  made  by 
abutting  owners  upon  roads,  and  the  surveyor  is  called  upon  to  relocate  the 
original  line.     Stony  spots,  ruts,  and  channels,  wet,  soft,  and  muddy  places, 
cause  teamsters  to  deviate  and  select  Hew  routes,  and  travel  thus  shifts  from 
side  to  side,  sometimes  encroaching  upon  and  at  other  times  receding  from 
opposite  property  owners,  who  follow  up  with  their  fences.     This  is  no  doubt 
the  frequent  cause  of  the  sinuosities  of  roads.      Easements  cannot  in  general 
be  acquired  against  the  state  or  the  public,    unless  expressly  permitted  by 
statute.     Therefore  in  general  the  old  line  should  be  re-established  and  fences 
replaced  when  they  have  encroached  upon  public  roads. 

The  public  may,  however,  acquire  easements  in  or  over  private  property 
by  adverse  use  for  the  full  statutory  period.  The  same  circumstances  and 
conditions  must  characterize  the  use  as  are  necessary  to  give  an  individual  the 
same  rights  in  private  property.  The  use  by  the  public  must  therefore  be 
adverse  and  under  a  claim  of  right,  and  not  by  permission.  A  gate  erected 
across  the  way,  and  maintained  and  kept  closed  by  the  owner  at  certain  times 
during  the  period,  thus  evincing  an  intention  to  exclude  the  public,  interrupts 
the  use  and  destroys  any  prescriptive  rights  not  already  fully  acquired.4  In 
case  of  an  easement  of  an  alley  acquired  by  an  individual,  a  gate  maintained 
across  the  alley  is  of  no  consequence  if  the  claimant  used  the  way  whenever 
he  chose  to  do  so.5 

685.  Prescriptive  Rights  Acquired  over  Railways.*— The  reason  that 
individuals  cannot  acquire  prescriptive  rights  over  or  in  highways  is  that  it 
would  be  allowing  adverse  rights  against  the  state,  which  cannot  be  put  to 
the  trouble  of  watching  her  innumerable  roads  and  streets.     This  reason  does 

1  State  v.  Wolfe  (N.  C.),  17  S.  E.  Rep.  s  Kurtz  z/.  Hoke  (Pa.)  Sup.),  33  Atl.  Rep. 
528;  Sutton  v.  Nicholaisen  (Cal.),  44  Pac.        549. 

Rep.  805.  But  see  Taft  v.  Commonwealth  *Shellhouse    v.  State  (Ind.),  n  N.   E. 

(Mass.),  33  N.  E.  Rep.  1046.  Rep.  484  [1887], 

2  Follendore  v.  Thomas  (Ga.),  20  S.  E.  5Demuth   v.    Amweg,  90    Pa.    St.    181 
Rep.  329;  Hoyt  v,   Kennedy  (Mass.),  48  [1879]. 

N.  E.  Rep.  1073  [1898]. 

*  See  Sec.  535,  supra. 


§685.  OPERATIONS  PRELIMINARY    TO    CONSTRUCTION.  47 2 

not  exist  with  regard  to  railroads,  and  therefore  an  open,  uninterrupted,  and 
adverse  use  for  the  statutory  period  will  give  a  right  of  way  over  the  location 
of  a  railroad  although  the  road  is  in  actual  operation.1  The  existence  of  a 
statute  forbidding  walking  or  riding  or  driving  upon  a  railroad-track  will 
not  defeat  the  prescriptive  rights,  as  these  acts  are  unlawful  only  when  done 
without  the  railroad's  consent.2 

Title  by  adverse  possession  may  be  obtained  to  land  which  a  railroad 
company  acquired  by  its  charter  in  fee,  and  which,  though  it  abutted  and 
paralleled  its  right  of  way,  the  company  did  not,  and  was  not  compelled  to, 
include  in  nor  maintain  as  such. 3 

Where  a  railroad  company  has  built  its  station  on  lots  bounded  by  two 
streets,  and  has  left  vacant  a  strip  of  land  parallel  to  each  street,  to  be  used 
as  an  approach  to  the  station,  which  strip  was  paved  by  the  company,  and 
there  was  no  intention  to  dedicate  this  land  to  the  public,  it  was  held  that 
although  such  land  had  been  so  left  open  for  more  than  twenty  years,  and 
had  been  used  by  the  public  as  part  of  the  streets,  there  was  neither  a 
common-law  dedication  nor  a  prescriptive  title  in  the  public.4 

To  support  claim  of  adverse  possession  by  the  owner  of  the  servient  estate 
against  the  easement  of  a  railroad,  it  must  distinctly  appear  that  his  occupancy 
is  hostile  to  that  of  the  railroad  and  inconsistent  therewith.5 

One  who  cultivates  and  raises  crops  on  the  right  of  way  of  a  railroad  may 
acquire  title  thereto  by  adverse  possession,  although  the  railroad  company 
runs  trains  over  the  track  laid  thereon.6 

As  prescriptive  rights  may  be  acquired  over  railroads,  so  may  railroads 
acquire  right  of  way  over,  and  user  in,  private  property.  Such  adverse  posses- 
sion and  user  of  a  public  street,  however,  gives  no  right  as  against  the  public, 
or  against  individuals  who  have  the  right  or  easement  of  passing  over  the 
street;  and  though  the  railroad  has  purchased  the  fee  of  the  land  in  a  public 
street,  such  act  does  not  authorize  it  to  construct  its  road  upon  such  street, 
as  against  the  public,  without  express  authority  of  law.7  Adverse  and  con- 
tinuous use  by  a  railway  company  of  a  strip  of  land  as  a  right  of  way  creates 
an  easement  by  prescription.8  The  North  Carolina  courts  have  held  that  a 

iWisher  v.  N.  Y.  &  N.  E.  R.  Co.,  135  HI,  564. 

Mass.   197  [1883];    Hardy  v.  Alabama  &  *  Chicago  v.  Chicago,  R.  I.  &  P.  Ry.  Co. 

V.  Ry.  (Miss.),  19  So.  Rep.  661.  (111.  Sup.),  38  N.  E.  Rep.  768. 

2 Turner  v.  Fitchburg  Ry.  Co.  (Mass.),  5  Wilmot    v.    Yazoo   &    M.    V.   R.   Co. 

14  N.  E.  Rep.  627  [i888j;  Spottiswood  v.  (Miss.),  24  So.  Rep.  701  [1899]. 

Morris  &  E.  R.  Co.  (N.  J.),  40  All.  Rep.  6  Paxton   v.    Yazoo    &    M.    V.    R.    Co. 

505  [1898];  Clafflin  v.  Boston,  etc.,  R.  Co.  (Miss.),  24  So.  Rep.  536  [1899].   See  Nash- 

(Mass.),  32  N.  E.  Rep.  659.     But  see  An-  ville,  etc.,   Ry.  v.   Reynolds  (Tenn.),  48 

dries    v.    Detroit,  etc.,  Ry.  Co.  (Mich.),  S.  W.  Rep.  258  [1898],  and  Brayden    v. 

63    N.  W.   Rep.   526;  and  Massachusetts  New  York,  etc.,  R.  Co.  (Mass.),  51  N.  E. 

Statutes    1861,    ch.    100,    preventing   the  Rep.  1081. 

acquisition  of  railroad  land  by  adverse  7  Atty.  Gen.  v.  M.  &  E.  Ry.  Co.,  19  N. 

possession  ;    and   Littlefield    v.   B.   &  A.  J.  Eq.  386  [1869]. 

R.  Co.  (Mass.),  15  N.  E.  Rep.  648  [1888].  8 Texas  &    P.   Ry.   Co.  v.  Gaines  (Tex. 

'Illinois  Cent.  R.  Co.  v.  Wakefield,  173  Civ.  App.),  27  S.  W.   Rep.  266;  Johnson 


473  PRESCRIPTION  AND    PRESCRIPTIVE  RIGHTS.  §  686. 

railroad  company  cannot  obtain  title  to  a  right  of  way  over  land  by  prescrip- 
tion, since  it  can  obtain  such  easement  through  the  exercise  of  its  right  of 
eminent  domain  without  the  owner's  grant  or  consent.1 

686.  Tacking  the  Use  of  Successive  Holders. — The  same  conditions  and 
circumstances  that  enable  a  subsequent  holder  to  claim  the  benefits  of  his 
predecessor's  adverse  possession  will  enable  a  successor  to  claim  the  benefit 
of  his  grantor's  adverse  user  and  enjoyment  of  an  easement."  Privity  of 
estate  is  necessary  in  order  that  successive  holders  of  land  may  have  the 
benefit  of  the  possession  of  those  who  have  held  before  them.  The  possession 
of  the  successive  occupants  must  be  connected  by  purchase,  descent,  or 
devise,  in  order  that  the  periods  of  their  possession  may  be  added  together 
to  make  the  full  statutory  period.  The  relation  between  the  claimants  who 
have  successively  had  possession  must  be  that  of  ancestor  and  heir,  grantor 
and  grantee,  or  devisor  and  devisee.  There  should  be  privity  either  of  con- 
tract, blood,  or  estate.  Some  deed  or  instrument  sufficient  in  form  for  the 
purpose  of  carrying  title  is  an  essential  ingredient  to  constructive  possession. 
The  connecting  link  must  in  general  be  a  valid  deed  or  conveyance.  A  con- 
structive possession  for  less  than  the  statutory  period  is  in  the  nature  of  an 
incorporeal  right  and  cannot  be  transferred  by  livery  of  seisin.  The  prior 
possessor  may  have  a  right  to  say  who  shall  have  and  continue  this  wrongful 
possession  or  inchoate  right,  and  may  transfer  it  by  sale  or  gift,  but  the 
transfer  must  be  by  deed  or  by  law.2 

In  tacking  or  uniting  the  possessions  of  two  or  more  successive  occupants 
who  have  held  under  color  of  title,  the  entire  possession  will  be  confined  to 
the  metes  and  bounds  described  in  the  prior  holder's  color  of  title.  If  more 
is  claimed,  it  must  be  shown  that  the  possession  of  it  was  delivered  as  part  of 
the  lands  sold  or  conveyed.  If  one  is  in  possession  of  a  strip  of  land  together 
with  adjoining  land,  and  deeds  the  adjoining  land,  giving  possession  of  both, 
the  possession  of  the  strip  by  the  grantor  may  be  tacked  to  that  of  the  grantee 
to  make  the  full  period  necessary  to  give  title.3 

It  is  universally  admitted  that  interest  acquired  by  possession  will  descend 
to  the  heir  without  interrupting  the  running  of  the  statute,  and  there  is  no 
good  reason  why  the  ancestor  may  not  voluntarily  dispose  of  his  possessory 
interest.  The  mode  of  transfer  may  give  rise  to  questions  between  the  parties 
to  the  transfer;  but  as  respects  the  rights  of  a  third  person  against  whom  the 
possession  is  held  adversely,  it  is  immaterial,  if  the  successive  transfer  of  the 
possession  were  in  fact  made,  whether  it  was  made  by  will,  by  deed,  or  by 
mere  agreement,  either  written  or  verbal.4  It  is  necessary  that  an  occupant 

v.  Owensboro,  etc.,  Ry.  Co.  (Ky.),  36  S.  "Falcon   v.  Sunshower,  22  N.  E.  Rep. 

W.  Rep.  8;  Ryan  v.  M.  V.  &  S.  I.  R.  Co.,  835. 

62  Miss.  162  [1884].  4McNeelyz/.  Langan,  22  Ohio   St.  32. 

1  Narron  v.  Wilmington  &  W.   R.   Co.  See  also  50  Mo.  536;  Weber  v.  Anderson, 
(N.    C.),  20  S.  E.  Rep.  356  [1898].  73  HI-  439- 

2  Simpson  v.  Downing,  23  Wend.  316. 


§687.          OPERATIONS  PRELIMINARY   TO    CONSTRUCTION.  4/4 

claim  under  the  prior  holder  in  order  to  avail  himself  of  the  prior  holder's 
adverse  possession.1 

In  Connecticut  and  in  some  other  states  continued  uninterrupted  posses- 
sion for  the  full  statutory  period,  whether  by  one  person  or  more,  is  sufficient. 
The  possession  must  be  connected  and  continuous,  so  that  there  shall  be  no 
time  during  which  the  possession  of  the  true  owner  shall  have  intervened,  and 
such  connection  and  continuity  may  be  effected  by  any  conveyance,  agree- 
ment, or  understanding  which  has  for  its  object  a  transfer  of  the  rights  of  the 
possessor  or  of  his  possession,  and  which  is  accompanied  by  an  actual 
transfer  of  possession  in  fact.* 

687.  What  is  Privity  of  Estates. — What  will  constitute  privity,  or  what 
will  not,  is  a  difficult  question;  but  it  is  certain  that  if  any  moment  of  time 
exists  after  the  transfer  is  made,  that  the  property  is  not  occupied,  the  legal 
possession  of  the  real  owner  asserts  itself  and  is  restored,  which  destroys  the 
continuity  of  the  two  successive  possessions.  The  continuity  must  be  proven, 
it  will  not  be  assumed;  and  testimony  that  the  prior  holder  merely  sold  to 
the  subsequent  holder  is  too  vague  to  show  privity  between  them.  There 
must  be  evidence  showing  what  was  sold,  good  will,  title,  or  possession.  It 
must  be  shown  that  the  actual  possession  of  an  estate  was  delivered,  that  the 
boundaries  were  denned  and  limited,  and  that  each  successive  holder  has 
possessed  and  claimed  the  same  particular  parcel  the  ownership  of  which  is 
the  subject  of  dispute.3 

A  widow  cannot  tack  her  possession  to  that  of  her  deceased  husband 
unless  by  deed  or  devise,  because  the  seisin  went  to  the  heirs  of  the  husband, 
or  the  seisin  of  the  true  owner  revived.  Right  of  dower  is  not  enough.4 
This  is  so  even  though  the  widow  resided  with  her  husband  on  the  land  during 
his  possession.5  Privity  of  successive  possessors  may  be  shown  by  parol  evi- 
dence.6 Nor  can  a  remainderman  tack  his  possession  to  that  of  the  tenant 
for  life,  because  the  remainderman  cannot  bring  action  against  the  disseizor 
until  he  has  title7  or  possession,  and  therefore  the  disseizor  has  not  had 
possession  for  twenty  years  after  the  right  accrued.8 

A  sheriff's  deed  is  of  itself  good  "color  of  title" ;  but  if  unaccompanied  by 
judgment  or  execution,  it  is  not  evidence  of  the  sheriff's  authority  to  sell,  and 
is  not,  therefore,  sufficient  evidence  of  privity  between  the  purchaser  and  the 
prior  adverse  occupant.9 

1  Am.  &  Eng.  Ency.  Law  271.  241. 

2  3  Gray's  Real  Property  114  and  cases  5  East   Tennessee    Iron  &  Coal  Co.  v. 
cited.  Walton  (Tenn.  Ch.  App.),  35  S.  W.  Rep. 

3  Potts    v.  Gilbert,  3  Wash.  C.  C.  475.  459. 

See  also  Clapp    v.    Birmingham,  9  Cow.  6  Weber  v.  Anderson,  73  111.  439. 

563;  Moore  v.  Collishaw,  10  Pa.   St.   224;  7  Boynton  v.  Middlesex  Mut.  Fire  Ins. 

Schrack  v.  Zubler,  34  Pa.   St.  38;  People  Co.,  45  Mass.  215. 

ex  rel.  Mitchell  v.  Haws,  20  How.  29-32  ;  8  See  Haynes  v.   Boardman,  119  Mass. 

Doe  v.  Brown,  4  Ind.  143;  San  Francisco  414. 

v.  Fulde,  37  Cal.  349.  9Kendrick  v.  Latham  (Fla.),  6  So.  Rep. 

*  Sawyer  v.   Kendall  (Mass.),  10  Cush.  871 


475  PRESCRIPTION  AND   PRESCRIPTIVE  RIGHTS.  §  688. 

An  invalid  sheriff's  deed  will  not  constitute  privity  between  the  purchaser 
.and  the  person  whose  property  is  sold.1  Where  land  is  sold  under  a  judgment, 
one  in  occupation  cannot  tack  the  time  he  held  after  sheriff's  sale  to  his  pos- 
session had  before  the  sale.2  A  corporation  cannot  tack  its  possession  to  that 
of  the  individual  members  of  the  corporation  even  when  organized  as  a 
voluntary  society  for  furthering  the  purpose  of  such  members.3  In  South 
Carolina  it  has  been  held  that  an  heir  can  tack  his  possession  to  that  of  his 
ancestor,4  but  that  a  purchaser  cannot  have  the  benefit  of  his  vendor's 
possession.5 

Courts  have  gone  to  great  lengths  in  presuming  grants  when  it  conduced 
to  justice  and  quieted  men  in  their  possessions.  In  a  case  where  the  statute 
operates  mere  length  of  time  less  than  that  prescribed  by  statute,  can  never 
be  a  presumptive  bar.  Length  of  time  accompanied  by  circumstances  which 
render  it  probable  that  a  grant  was  made  may  be  a  presumptive  bar.6  No 
written  instrument  is  necessary  to  establish  privity  where  the  possession  is 
actual ;  but  if  the  possession  is  constructive  only,  a  written  contract  is  essen- 
tial.7 Adverse  possession  of  inclosed  lands  by  a  donee  before  deed  maybe 
coupled  with  possession  after  the  deed  is  given.8 

An  abandonment  or  vacating  of  the  premises  by  the  grantor,  the  premises 
remaining  vacant  a  short  time  before  the  grantee  took  possession,  was  held  to 
prevent  tacking  the  grantor's  to  the  grantee's  possession.9 

688.  Disabilities  to  which  Owner  of  Servient  Estate  is  Subject,— The 
grounds  on  whi^h  claims  to  property  were  allowed  after  an  adverse  possession 
for  a  long  time  were  (and  are)  that  a  grant  or  title  was  presumed  to  have  been 
given  and,  that  the  occupant  entered  under  it.  If  such  a  grant  were  impossi- 
ble, or  if  the  true  owner  had  no  legal  right  or  capacity  to  make  such  a  grant, 
then  the  presumption  fails  and  the  possession  is  not  adverse.  This  incapacity 
of  the  grantor  is  called  "disability,"  and  it  may  arise  from  infancy,  covert- 
ure, absence,  imprisonment,  etc.,  or  from  any  cause  that  would  destroy  the 
presumption  of  a  grant.  The  same  law  of  disabilities  to  adverse  user  is 
.applied  to  incorporeal  rights  as  belongs  to  corporeal  rights.  The  law  was 
very  unsettled  on  these  points  in  its  earlier  history  in  this  country,  but  there 
can  be  little  doubt  of  the  general  correctness  of  the  above  statements  at  this 
date.10  The  presumption  of  right  operates  in  strict  analogy  to  the  statutes  of 
limitation,  and  whatever  disabilities  are  allowed  by  them  will  be  recognized  in 
prescription.11  A  second  disability  cannot  be  added  to  one  which  existed 

1  22  Ga.  46.  7  Kendricks    v.    Latham  (Fla.),    6   So. 

2  53  Ga.  320.  Rep.  871. 

3  Reformed   Church   v.   Schoolcraft,  65  8  Sanders  v.  Logue,  12  S.  W.  Rep.  722. 
N.  Y.  134.  "36  Miss.  504. 

4  Williams  v.  McAliley,  Cheeves  200.  10  Ballard  v.  Demmon  (Mass.),  31  N.  E. 

5  King  v.  Smith,  Rice  10.     See  Haynes  Rep.  635. 

v.  Boardman,  119  Mass.  414.  u  Renierz/.  Slater,  20  Pa.  St.  458;  Tracy 

6  Swift,  Ch.  J.,  in  Bunce  v.  Wolcott,  2       v.  Atherton,  36  Vt.  503. 
Conn.  27. 


§688.          OPERATIONS  PRELIMINARY    TO    CONSTRUCTION. 

when  the  adverse  possession  began,  even  though  there  has  been  no  time  when 
the  owner  was  free.  Disabilities  cannot  be  tacked  in  prescription  any  more 
than  in  adverse  possession.  To  tack  successive  users  or  periods  of  enjoyment 
there  must  be  privity  between  the  parties  either  of  contract,  blood,  or  estate. 

If  there  has  existed  a  period,  however  short,  in  which  the  disability  was 
removed  or  destroyed,  it  will  set  the  statute  running  from  that  time.  If  a 
man  lives  for  one  day  after  his  cause  of  action  has  accrued,  and  then  dies, 
leaving  infant  children,  their  infancy  will  not  prevent  the  statute  from  running, 
though  there  be  no  time  during  the  period  when  they  could  have  sued. 
Once  in  motion  the  statute  cannot  be  interrupted  by  subsequent  disabilities. 
If  the  possession  remains  adverse  and  continuous  until  the  full  period  has 
passed,  the  right  to  enter  is  gone  forever. 

Like  every  other  assertion  of  the  law,  this  statement  must  be  taken  with 
certain  qualifications.  This  is  a  subject  that  has  received  special  legislation. 
In  some  states  it  has  been  enacted  that  civil  war  and  absence  from  the  state 
would  postpone  the  operations  of  the  statute.1 

Outside  of  these  few  exceptions  it  may  be  said  that  the  universal  rule  is 
well  settled  that,  when  the  statute  of  limitations  has  begun,  it  will  not  be 
interrupted  by  any  subsequent  disability.  The  operation  of  the  statute  is 
prevented  only  so  long  as  that  disability  continues  which  existed  when  the 
cause  of  action  accrued.  A  subsequent  disability  cannot  be  added  to  bar  the 
statute.  Though  the  prior  disability  continues  until  after  the  later  one  has 
commenced,  and  though  there  has  been  no  time  during  which  the  person 
could  have  brought  his  action,  yet  the  subsequent  disability  cannot  bar  the 
statute.2  The  statutory  period  of  adverse  possession  will  commence  to  run 
the  moment  the  prior  disability  has  ceased  to  exist. 

If  this  were  otherwise,  it  is  claimed  that  the  objects  of  the  statute  would 
be  defeated.  If  successive  disabilities  could  be  united,  old  claims  might  be 
preserved  until  all  evidence  respecting  them  had  been  obliterated,  and  might 
then  be  used  to  annoy  claimants  who  might  have  already  enjoyed  undisturbed 
possession  for  half  a  century  or  more.  Such  a  law  would  be  contrary  to  the 
spirit,  meaning,  and  express  purposes  of  the  statute  and  to  the  whole  theory 
of  adverse  possession.3 

Statutes  also  exist  which  require  that  the  statute  begin  to  run  during 
the  disability,  as  in  Connecticut,  where  the  law  allows  but  five  years  in 
which  to  make  entry  after  the  disability  is  removed.  In  this  case  either 
it  must  be  admitted  that  the  period  of  limitations  in  such  a  case  is  shortened 
by  ten  years,  or  that  the  statute  began  to  operate  against  the  true  owner  ten 
years  before  the  disability  was  destroyed.  Whether  by  the  theory  of  pre- 

1  13  Amer.  &  Eng.  Ency.  Law  732.  claim  in  court,  then    there    has  been  no 
2 Note. — If  this  be  maintained,  it  must  time  in  which  he  could  have  made  aeon- 
be  upon  some  other  theory  than  that  of  a  veyance,  and  therefore  there  can    be  no 
presumptive  grant.    If  there  has  been  no  presumptive  grant. 
time  in  which  the  owner  could  assert  his  3  Bunce  v,  Wolcott,  2  Ccnn.  27. 


477  PRESCRIPTION  AND   PRESCRIPTIVE  RIGHTS.  §  688. 

sumption  or  by  the  arbitrary  power  of  the  legislature,  the  rule  is  fully 
established  that,  when  the  statute  has  commenced  to  run,  it  runs  through  all 
subsequent  disabilities  and  intermediate  events  and  conditions  that  may  sur- 
round the  true  owner. l 

When  a  man  who  was  insane  when  disseized  subsequently  recovered  his 
reason  for  a  time,  but  again  relapsed  into  insanity,  it  was  held  that  the  statute 
was  set  in  motion  by  his  sanity,  and  that  the  relapse  did  not  affect  its  running. 
If  a  person  is  under  more  than  one  disability  when  his  land  is  taken  possession 
of  'by  an  adverse  claimant,  he  is  not  obliged  to  act  until  the  last  disability  is 
removed.  The  owner  may  elect  whichever  disability  he  may  choose  to  excuse 
his  delay  in  asserting  his  rights  to  the  property.2  Thus  an  infant  woman 
marries  and  becomes  insane,  and  is  afterwards  disseized;  she  becomes  of  age 
at  twenty-one,  is  a  widow  at  forty,  and  recovers  reason  at  sixty.  Here  are 
three  disabilities  all  existing  when  she  is  disseized;  therefore  the  statute  of 
limitations  will  not  run  until  the  last  disability  is  removed.  If  her  marriage 
and  insanity  had  taken  place  after  her  disseisin,  then  the  statute  would  have 
commenced  when  she  became  of  age.  (at  twenty-pne  years  of  age).  If  the 
disseisin  had  taken  place  while  she  was  under  age  and  married,  and  she  after- 
wards became  insane,  then  the  statute  would  have  begun  when  she  became  a 
widow. 

The  burden  of  proof  rests  on  one  claiming  an  easement  by  prescriptive 
right,  arising  from  user  for  the  statutory  period,  to  show  that  during  all  of 
such  period  the  servient  estate  was  owned  by  persons  free  from  legal  dis- 
ability.3 

It  is  a  universal  rule  that  exemptions  from  the  operation  of  the  statute  are 
privileges  given  by  the  statute  itself,  and  cannot  be  allowed  if  not  expressly 
provided  for  by  the  statute.  The  language  of  the  act  must  prevail;  no 
departure  is  justified  on  account  of  inconvenience  or  hardships.4  A  remark- 
able case  illustrating  this  rule  in  a  striking  way  was  decided  in  the  United 
States  courts.  A  railroad  company  held  bonds  of  a  city,  and  attempted  to 
sue  upon  them.  The  mayor  and  common  council  each  year  as  soon  as 
elected  met  in  secret  places  with  locked  doors,  transacted  necessary  business 
for  the  year,  and  resigned,  which  resignation  took  effect  immediately.  The 
city  was,  in  this  way,  able  to  evade  summons,  and  for  ten  years  was  without 
officers.  The  court  held  that  in  equity  fraudulent  concealment  might  form 
an  exception  to  the  statute,  but  that  for  a  debtor  to  evade  service  of  process 
was  not  fraudulent  in  the  legal  sense  of  the  term,  however  morally  wrong  or 
dishonest  it  might  be.5 

1  13  Amer.  &  Eng.  Ency.  Law  732,  733,  cases  cited, 

and  cases  cited.  5Amy  v.    Watertown   (Wis.),    22  Fed. 

2 1  Amer.  &  Eng.  Ency.  Law  735.  Rep.     418;    affirmed    in    130    U.   S.    320. 

*Saunders  v.  Simpson   (Tenn.),  37  S.  See  also  Nash    v.  El  Dorado  Co.  (Cal.)r 

W.  Rep.  195.  24  Fed.  Rep.  252,  and  71  la.  147. 

*l  Amer.  &  Eng.  Ency.  Law,  735,  and 


§688.  OPERATIONS  PRELIMINARY   TO    CONSTRUCTION.  478 

In  general,  when  there  is  no  person  to  sue  or  be  sued  the  statute  will  not 
begin  to  run;  there  must  be  in  existence  some  one  who  can  sue  and  somebody 
who  can  be  sued.  When,  therefore,  an  action  accrues  to  the  estate  of  a 
deceased  person,  the  statute  does  not  run  until  a  representative  has  been  duly 
qualified.  This  is  understood  to  be  the  general  rule  everywhere.1  Accord- 
ingly the  statute  does  not  run  against  a  town  until  it  is  incorporated  and  has 
capacity  to  sue.3  In  California  the  statute  runs  nevertheless,  although  there 
be  no  parties  to  sue  or  be  sued.3 

War,  fraud,  and  concealment  will  in  some  states  suspend  the  statute. 
The  war  must  consist  of  invasion,  rebellion,  or  insurrection,  which  disturbs 
or  stops  the  peaceable  course  of  justice,  or  which  closes  the  doors  of  the 
courts.  The  courst  must  be  closed  or  interrupted.  An  occasional  invasion 
by  hostile  Indians  is  not  enough,  unless  the  business  of  the  court  is  stopped. 
An  act  of  Congress  to  suspend  the  operation  of  the  statute  will  bind  state  as 
well  as  federal  courts;  but  it  is  held  to  the  contrary  in  Louisiana.4  Courts 
will  take  judicial  notice  of  the  beginning  and  end  of  a  civil  war,  or  of  the 
supervision  of  the  statute,  without  its  being  pleaded  or  proven. 5 

In  bringing  an  action  near  the  end  of  the  period,  it  is  pretty  well  settled 
that  if  the  writ  is  sworn  out  and  delivered  for  service  within  the  statutory 
period  it  will  save  the  suit.  It  stops  the  running  of  the  statute,  for  the  statute 
does  not  run  against  a  claim  while  it  is  in  litigation.  Complaints  are 
permitted  to  be  amended  after  the  period  has  elapsed ;  and  in  some  states  it 
has  been  held  that  the  statute  does  not  apply  when  the  suit  has  been 
disallowed  because  it  was  brought  in  a  wrong  court,6  but  does  apply  when  the 
suit  has  been  dismissed  for  want  of  jurisdiction.7 

Trial  need  not  be  had,  or  judgment  obtained,  during  the  statutory  period. 
If  the  suit  is  begun,  it  is  sufficient.  An  action  of  ejectment  brought  by  the 
owner  and  afterwards  dismissed  will  not  interrupt  or  suspend  an  adverse  pos- 
session; but  if  it  be  ^successful  and  judgment  is  obtained,  the  operation  of  the 
statute  is  interrupted  from  the  bringing  of  the  suit.8 

In  computing  the  time  from  one  event,  as  an  act  of  disseisin  or  taking 
possession,  it  is  a  general  rule  that  the  day  on  which  the  act  is  coihmitted  or 
instrument  is  delivered  is  not  counted,  but  is  excluded.  This  is  equally  true 
of  contracts.  It  is  not  an  inflexible  rule,  but  will  give  way  to  a  manifest 
contrary  intention  in  a  statute  or  contract . 

Before  the  married  woman's  acts  were  passed,  marriage  (or  coverture,  as 
it  is  generally  spoken  of  in  law)  was  a  disability  which  denied  her  any  separate 
recognition  in  a  court;  but  now  that  a  married  woman  can  sue  and  be  sued 
as  if  she  were  single,  that  is  no  longer  a  disability,  nor  is  there  any  reason  why 

1  13  Amer.  &  Eng.  Ency.  Law  737.  6  Bonney  v.  Stoughton,  122  111.  536. 

*  18  Mo.  220;  2  Lea  (Tenn.)  694.  7  Mclntyre  v.   Mich.  State   Ins.  Co.,  52 

3  i  Amer.  &  Eng.  Ency.  Law  737.  Mich.  188. 

4  13  Amer.  &   Eng    Ency.  Law  738,  739.  8i  Amer.  &  Eng.  Ency.  Law  275. 
6 13  Amer.  &  Eng.  Ency.  Law  744. 


4/9  PRESCRIPTION  AND    PRESCRIPTIVE   RIGHTS.  §  689. 

she  should  be  exempt  from  the  statute.  This  is  the  general  law,  but  there 
are  exceptions.1 

689.  Prescriptive  Eights  in  General.  —  Prescriptive  rights  may  be 
acquired  in  any  incorporeal  right  or  interest  the  use  of  which  gives  to  the 
owner  of  the  servient  estate  a  right  of  action  against  the  trespasser  or  person 
exercising  such  user.  The  subject  of  prescriptive  right  in  the  numerous 
interests  incident  to  land  has  been  discussed  in  the  several  chapters  treating 
of  these  special  subjects;  it  will  therefore  be  a  waste  of  time  and  space  to 
review  the  subjects  here,  and  the  reader  is  referred  to  those  sections  in  the 
several  chapters  mentioned  for  the  particular  treatment  of  prescription  in 
regard  to  those  rights.* 

Prescriptive  rights  to  invade  and  take  natural  rights  incident  to  property 
may  be  acquired  in  any  case,  as  before  stated,  if  the  invasion  and  appropria- 
tion of  such  rights  gives  the  owner  a  just  cause  of  action  against  the  tres- 
passer. Therefore  rights  may  be  acquired  in  minerals  and  fluids  pervading 
the  earth,  to  pollute  the  air,  water,  and  light,  to  violate  and  disturb  the  quiet 
and  peaceful  ness  that  belongs  to  nature. 

Prescriptive  rights  may  be  acquired  to  violate  the  rights  of  possession 
either  to  land  or  to  things  incident  to  land.  Essentially  prescription  is  a 
negative  right — the  right  to  invade  the  rights  of  others.  It  would  be  more 
sensible  to  call  it  a  prescriptive  wrong,  which  after  long  use  or  abuse 
becomes  a  right. 

The  subject  is  continued  in  the  succeeding  chapters  on  Rights  of  Way, 
and  cAer  topics  of  peculiar  interest  in  construction  work. 

1  13    Amer.    &    Eng.    Ency.    Law    740;        Rep.  231. 
Randolph  v.   Casey  (W.   Va.),    27  S.   E. 

*  See  Sees.  107,  New  Channel  of  a  Stream;  183,  Eaves  Drip;  185,  Surface  Waters; 
212,  Polution  of  Waters;  262,  Underground  Waters;  325,  326,  Lateral  Support;  500- 
503,  Boundaries;  511-540,  Adverse  Possession;  641-660,  Easements;  661-670,  License; 
701-710,  Dedication;  711-730,  Rights  of  Way. 


CHAPTER  XXXV. 
DEDICATION  TO   PUBLIC   OF   RIGHTS   IN  LAND. 

701.  Origin  and  Character  of  Dedication. — The  principles  of  the  law  of 
dedication  had  their  origin  in  the  early  common  law.  The  earliest  recogni- 
tion of  the  doctrine  of  dedication  of  easements  and  the  public  use  thereof 
appears  in  two  comparatively  modern  decisions,1  and  it  has  since  been  fully 
and  generally  recognized  as  a  familiar  and  undoubted  principle  of  the  law. 

Dedication  has  been  well  defined  as  "an  appropriation  of  land  to  some 
public  use  made  by  the  owner  of  the  fee,  and  accepted  for  such  use  by  or  on 
behalf  of  the  public."  2  It  is  said  that  the  doctrine  of  dedication  is  founded 
in  public  convenience.  The  owner  of  the  fee,  however,  does  not  make  the 
dedication  primarily  for  the  convenience  of  the  public,  but  for  some  advantage 
which  will  accrue  to  him  by  having  the  public  make  use  of  the  easement 
granted. 

A  common-law  dedication  of  land  must  be  made  to  the  public.  It  cannot 
be  to  an  association  of  persons  or  to  a  private  corporation,  as  a  railroad  com- 
pany.3 No  particular  formality  is  necessary  to  constitute  a  good  dedication 
at  common  law.  It  may  be  established  by  grant  or  written  instrument,  or 
by  the  acts  and  declarations  of  the  owner  of  the  premises.  The  vital  principle 
of  dedication  is  the  intention  to  dedicate,  and  whenever  this  is  unequivocally 
manifested  the  dedication,  so  far  as  the  owner  of  the  soil  is  concerned,  has 
been  made.4 

If  the  dedication  be  accepted  and  used  by  the  public  in  the  manner 
intended,  the  dedication  is  complete,  precluding  the  owner  and  all  claiming 
under  him  from  asserting  any  ownership  inconsistent  with  the  easement 
granted.  A  common-law  dedication  does  not  pass  the  legal  title  to  the  land, 
but  it  is  sufficient^to  defeat  an  action  at  law  for  the  recovery  of  the  possession 
of  the  property  as  against  those  who  are  using  it  in  accordance  with  the  object 

1  Rex  v.  Hudson,  2  Strange  909  [1732]:  *  Lake   Erie,  etc.,  R.   Co.    v.  Whitham 

Lode  v.  Shepherd,  2  Strange  1004 [1735].        (111.),  4°  N.  E.  Rep.  1014. 

8  Angell  or.  Highways  (3d    ed.),  chap.  4  De  Grilleau  v.   Frawley  (La.),  19  So. 

3,  §  132.  Rep.  151. 

480 


48 1  DEDICATION   TO  PUBLIC  OF  RIGHTS  IN  LAND.          §  7<D2. 

and  purpose  of  the  dedication.  The  mere  use,  however,  of  a  road  over 
private  land  by  the  public  will  not  make  it  a  public  road.1 

Statutory  dedications  are  made,  and  can  only  be  made,  in  strict  compli- 
ance with  the  statute,  and  compliance  with  the  statute  will  dispense  with  the 
necessity  for  any  assent  or  acceptance  on  the  part  of  the  public.  An  accept- 
ance by  the  public,  however,  may  cure  an  incomplete  statutory  dedication 
and  make  it  a  good  common-law  dedication.2  To  determine  the  requisites 
for  a  statutory  conveyance  the  statutes  of  the  several  states  must  be  consulted. 

702.  Purposes  of  Dedication. — The  fundamental  reason  for  making  a 
dedication  is  a  selfish  one.  The  dedicator,  except  in  a  few  cases,  does  not 
make  the  dedication  because  of  his  love  for  mankind,  but  because  he  expects, 
by  conferring  upon  the  public  some  use  in  his  lands,  to  enhance  the  value  of 
his  estate.  When,  for  instance,  a  town  or  city  increases  in  size  or  population, 
and  land  on  the  outskirts  is  cut  up  into  building-lots,  unless  there  be  some 
way  of  reaching  these  lots  they  are  valueless  for  the  purpose  for  which  they 
are  intended.  The  owner  lays  out  streets  through  his  land  and  dedicates 
them  to  the  public,  and  thus  the  lots  have  a  commercial  value.  The  public 
in  such  a  case  benefits,  as  it  has  the  full  use  of  these  streets,  but  the  dedicator 
of  the  streets  had  no  thought  of  benefiting  the  public  except  in,so  far  as  he 
himself  might  be  benefited.  The  same  holds  true  when  the  owner  of  land 
dedicates  a  park  or  square  to  the  public.  Of  course  there  are  some  wealthy 
people  who  dedicate  parks  and  squares  to  the  public  from  purely  philanthropic 
motives,  but  this  class  of  persons  is  very  small  as  compared  with  those  who 
dedicate  for  strictly  commercial  reasons. 

By  the  early  common  law  dedication  was  confined  to  highways,  as  the 
need  for  the  dedication  of  public  parks,  squares,  etc.,  was  not  then  felt.3  In 
this  country,  however,  the  doctrine  has  a  wider  application  and  its  limit  has 
been  judicially  extended  so  as  to  include  parks,  public  squares,  school-lots, 
burying-grounds,  lots  for  church  purposes,  and  other  charitable  uses  gen- 
erally.4 The  dedication  of  public  squares,  parks,  school-lots,  and  lots  for 
charitable  purposes  is  usually  made  by  the  public  authorities  for  the  benefit  of 
the  whole  community.  The  same  rules  of  law  apply  to  the  dedication  of 
squares,  parks,  school -lots,  etc.,  as  apply  to  the  dedication  of  highways.5 

In  the  case  of  the  dedication  of  bridges  to  the  use  of  the  public  the  same 
rules  also  apply,  with  the  exception  that  unless  a  bridge  is  used  by  the  public 

1  Dicken  v.  Liverpool  Salt  &  Coal  Co.  6  Hoadley    z>.    San    Francisco,  50    CaL 
(W.  Va.),  23  S.  E.  Rep.  582;  Tutwiler  v.  265;  Doe  v.  Attica,  7  Ind.  641;  Warren  f. 
Kendall  (Ala.),  21  So.  Rep.  332.  Lyons,  22  Iowa  351;  Mankato  z'.Willard, 

2  Fulton  v.  Mehrenfeld,  8  Ohio  St.  440;  13  Minn.  23;  Price  v.  Thompson,  48  Mo. 
Baker  v.  Johnson,  21  Mich.  319;  Sargeant  363;  New  York  v.  Stuyvesant,  17    N.  Y. 
v.  Bank,  12  How.  (U.  S.)  371;  Waugh  v.  34;    Langley   v.    Gallipolis,    2    Ohio   St. 
Leech,  28  111.  488.  107;  Pearsall  v.  Post,   20  Wend.  (N.  Y.) 

'Baker  v.  Johnson,  21  Mich.  319;  Post  in;    Commonwealth     v.      Alburger.    I 

v.  Pearsall,  22  Wend.  (N.  Y.)  425.  Whart.  (Pa.)  469;  State    v.  Atkinson,  24 

4  Mowry  v.  City  of  Providence,  10  R.  I.  Vt.  448. 
52. 


§  7°3-          OPERATIONS  PRELIMINARY    TO    CONSTRUCTION.  482 

it  may  be  indicted  as  a  nuisance.  In  the  case  of  a  highway  the  dedication  is 
complete  when  the  public  accepts  and  uses  the  way.  If,  however,  after 
acceptance  the  public  should  cease  to  use  the  way,  this  fact  would  have  no 
effect  on  the  dedication;  the  question  of  continued  usage,  in  regard  to  a 
highway,  is  not  material.  In  the  case  of  a  bridge,  however,  it  seems  that 
there  must  be  something  more  than  the  mere  acceptance  on  the  part  of  the 
public :  there  must  be  some  need  for  the  bridge.  The  fact  that  the  bridge 
has  been  used  for  some  time  is  prima  facie  evidence  that  it  is  not  a  nuisance.1 

703.  What  Constitutes  a  Dedication. — What  constitutes  dedication  is  a 
very  important  question,  not  only  for  the  owner  of  the  land,  but  also  for  the 
engineer.  A  landowner  who  is  ignorant  of  the  law  employs  an  engineer  to 
survey  a  piece  of  land  and  lay  it  out  in  town  or  city  lots.  To  add  to  the 
attractiveness  of  the  site  for  residential  purposes,  the  landowner  has  the 
engineer  survey  and  map  out  a  park  or  a  square,  and  the  land  is  sold  from 
maps  and  surveys  made  by  the  engineer,  with  the  lots  abutting  on  the  park 
or  square  as  designated.  After  some  of  the  lots  have  been  sold  from  the  map 
it  may  seem  advisable  to  the  landowner  to  change  the  location  or  abolish  the 
park  or  square.  Then  the  question  arises  whether  there  has  not  been  a 
dedication  to  the  public  of  the  park  or  square,  and  the  landowner  may  be 
estopped  from  interfering  with  it.  Such  questions  as  this  make  it  advisable 
that  the  engineer  have  at  least  a  general  knowledge  of  the  principles  of  dedi- 
cation, so  that  he  may  avoid  causing  his  employer  needless  loss  or  litigation 
which  was  not  contemplated  by  the  owner. 

The  real  test  to  determine  whether  there  has  been  a  valid  dedication  is 
whether  the  owner  of  the  land  intended  that  the  public  should  have  the  use  of 
the  land.  If  it  can  be  shown  that  the  owner  of  the  fee  intended  the  public 
to  have  an  easement  in  the  land,  and  if  it  also  can  be  shown  that  the  public 
used  the  easement  intended,  then  the  dedication  is  complete  and  the  dedicator 
is  bound  by  it.  No  particular  form  is  necessary  in  making  a  dedication. 
No  grant  is  required.2 

The  legal  title  to  the  land  does  not  pass  from  the  dedicator,  but  after  the 
dedication  he  owns  the  fee  subject  to  the  right  or  use  dedicated.3 

Dedication  may  be  made  by  parol  and  proved  by  parol,  the  only  necessary 
elements  being  that  the  owner  of  the  premises  intend  that  the  public  shall 
have  a  certain  use  or  right  in  his  land,  and  that  the  public  accept  the  use  of 
the  land  intended.4  The  intention  to  make  a  dedication  must  be  clearly 

1  State  v.  Carpenter,  2   N.  £1.513;  Wil-  'Lode  v.  Shepherd,  2  Stra.  1004;  Du- 

liams  v.  Cunningham  (Mass.),    18    Pick.  buque  v.  Maloney,  9  Iowa  450;  Beatty  v. 

312.  Kurtz,  2    Pet.    (U.    S.)   266;    Kelsey    v. 

2McConnell    v.   Lexington,   12  Wheat.  King,  33  How.  Pr.  (N.  Y.)  39;   New  Or- 

(U.  S.)  582;  Town  of  Pawlet  v.  Clark,  9  leans  v.  U.  S.,  10  Pet.  (U.  S.)  662;  Han- 

Cranch  (U.  S.)  292;  Winona  v.    Huff,   n  bury    v.    Woodland   Lumber  Co.    (Ga.), 

Minn.  114;    Doe    v.    Jones,    II    Ala.    63;  26  S.  E.  Rep.  47^. 

Bryant  v.    McCandless,    7  Ohio.   Pt.   II.  *Marcy  v.  Taylor,  19  111.  634;  Mayor  of 

135;     Klinkener    v.     School    District,    I  Macon  v.  Franklin,  12  Ga.    239;    Hall  v. 

Jones  (Pa.)  144.  McLeod,  2  Mete.  (Ky.)  98;  Institute  v. 


4^3  DEDICA  TION   TO   PUBLIC  OF  RIGH7S  IN  LAND.          §  703. 

shown,  but  the  intention  may  be  gathered  from  acts  and  declarations  of  the 
owner  in  connection  with  all  the  circumstances  which  surround  the  subject  in 
each  particular  case. l 

A  dedication  may  be  inferred  from  a  long  and  uninterrupted  use  by  the 
public  with  the  knowledge  and  consent  of  the  owner; a  but  where  the  dedica- 
tion is  based  on  the  mere  fact  alone  of  user  by  the  public,  it  has  been  held 
that  it  is  necessary  to  show  that  the  user  was  adverse,  that  is,  with  a  claim  of 
right;  and  that  the  claim  and  user  were  uninterrupted  for  the  period  required 
by  the  statute  of  limitations.8* 

Where  a  landowner  has  an  engineer  survey  his  land  into  lots,  streets,  and 
squares,  the  mere  act  of  surveying  and  mapping  the  streets  and  squares  will 
not,  in  itself,  amount  to  a  dedication;4  yet  a  sale  of  the  lots  with  reference 
to  the  engineer's  map  or  plan,  whether  recorded  or  not,  will  amount  to  an 
immediate  and  irrevocable  dedication  of  such  streets  and  squares  so  far  as  the 
owner  is  concerned.5 

Where  a  city  unlawfully  takes  land  for  street  purposes  without  the  owner's 
knowledge  and  constructs  a  street  thereon,  the  fact  that  the  owner  afterwards 
acquiesces  in  the  taking,  and  tenders  the  city  a  deed  if  it  will  make  com- 
pensation for  the  land  taken,  is  not  sufficient  to  imply  a  dedication  of  the  land 
so  as  to  deprive  the  owner  of  the  right  to  sue  for  compensation.6 

There  may  be  a  dedication  of  government  lands,  but  the  evidence  from 
which  consent  to  user  will  be  inferred  must  be  more  than  usually  clear  to  be 
conclusive  in  such  cases.7  The  reason  for  the  strictness  of  this  rule  is  that 
such  lands  are  usually  wild  and  unfenced,  free  to  public  access,  and  therefore 
it  cannot  readily  be  presumed  that  any  special  dedication  cam  be  intended. 
The  same  rule  is  applied  to  waste  and  unfenced  land  owned  by  private  indi- 
viduals.8 Intention  to  dedicate  will  be  more  readily  presumed  in  the  case  of 
city  or  town  land  than  in  the  case  of  country  land,  and  in  the  case  of  well- 
How,  27  Mo.  211;  Oswald  v.  Grenet,  22  *  United  States  v.  Chicago,  7  How.  (U. 
Tex.  94;  Gentleman  v.  Soule,  83  Am.  S.)  185. 

Dec.  264.  5  Van  Witson  v.  Gutman  (Md.),  29  Atl. 

1  Columbus  v.  Dahn,  36  Ind.  330;  Mor-       Rep.  608;  Pry  v.  Mankedic  (Pa.),  34  Atl. 
gan  v.  Railroad  Co.,  96  U.  S.  716.  Rep.     46;     Harrison      County     v.     Seal 

2McKey  v.  Hyde  Park  Village,  10  (Miss.),  5  So.  Rep.  622;  Heselton  v. 
Sup.  Ct.  Rep.  512;  Coburn  v.  San  Mateo  Harmon  (Me.),  14  Atl.  Rep.  286;  Archer 
County  (C.  C.),  75  Fed.  Rep.  520;  Shell-  v.  Salinas  City  (Cal.),  28  Pac.  Rep.  839; 
house  v.  State  (Ind.),  n  N.  E.  Rep.  484;  Porter  v.  Carpenter  (Fla.),  21  So.  Rep. 
Klenk  v.  Town  of  Walnut  Lake  (Minn.),  788;  Bissell  v.  Railroad  Co.,  23  N.  Y. 
53  N.  W.  Rep.  703;  McKenzie  v.  Gilmore  or. 
(Cal.).  33  Pac.  Rep.  262.  6Longworth  v.  City  of  Cincinnati 

3  Wilson  v.  Acree   (Tenn.  Sup.),  37  S.       (Ohio),  29  N.  E.  Rep.  274. 
W.  Rep.  90;  Remington  v.  Millerd,  I   R.  7  Boston   v.   Lecraw,    17    How.    (U.  S.) 

I.    93;     Thayer    v.     Boston,      19     Pick.       426;    Phipps  v.     State,    7    Blackf.    (Ind.) 
(Mass.)  511;  Talbot    v.    Grace,    30    Ind.       312;    Bigelow    v.    Hilleman,   37   Me.    52; 
389;  Green  v.  Oakes.    17  111.   249;   Smith       Russell  v.  State,  3  Coldw.  (Tenn.)  119. 
•v.  State,   3  Zab.  (N.  J.)  130,  712.    See  also  8  Ely  v.   Parsons  (Conn.),  10  Atl.  Rep. 

Onstott  v.  Murray,  22  Iowa  457,  where  499;  Peyton  v.  Shaw,  15  111.  App.  192; 
the  conflict  in  the  cases  is  reviewed.  Reiner  v.  Stuber,  20  Pa.  St.  458. 

*  See  Sees.  511-540  and  671-690,  supra. 


§  704-          OPERATIONS  PRELIMINARY  TO   CONSTRUCTION.  484 

settled  or  frequented  country  than  in  that  of  wild,  wood,   waste,  or  unfre- 
quented land.1 

Since  dedication  is  the  joint  effect  of  an  intention  to  appropriate  land  and 
an  acceptance  by  the  public,  no  presumption  of  dedication  can  be  made . 
where  circumstances  exist  which  negative  the  presumption  to  dedicate.  Any 
act  or  course  of  action  adopted  by  the  owner  with  the  evident  intention  of 
rebutting  the  intent  to  dedicate  will  be,  when  established,  conclusive  to  that 
end.2  A  very  common  method  is  to  put  a  gate  or  bar  across  the  road  to  show 
that  control  over  the  road  is  reserved  and  thus  rebut  the  presumption  of  intent 
to  dedicate.3 

704.  Who  may  Dedicate. — A  mere  stranger  without  authority  cannot,  of 
course,  dedicate  lands  to  public  use  any  more  than  he  can  deed  them.4  The 
dedication,  in  order  to  have  any  effect,  must  be  made  by  the  owner  of  the 
land.5  A  person  having  a  power  of  attorney  to  sell  and  convey  lands  has  no 
authority  to  make  a  dedication.  Where  an  express  power  to  dedicate  is  given 
to  an  agent,  the  owner  is  estopped  from  denying  the  validity  of  the  dedica- 
tion.6 A  person  occupying  government  land  cannot  dedicate  a  way  across 
these  lands,  nor  can  a  way  across  it  be  acquired  by  prescription.7  A  mort- 
gagor cannot  make  a  good  dedication  as  against  the  mortgagee,  although  as 
to  all  other  persons  he  is  regarded  as  the  owner  of  the  mortgaged  land.8  But 
if  the  mortgagee  assents  to  the  dedication,  he  will  be  bound  by  it,  as  will  those 
claiming  under  him.9  Mere  silence  of  the  mortgagee,  however,  will  not 
prevent  him  or  a  purchaser  at  foreclosure  sale  from  setting  up  his  right  to  the 
property  dedicated  by  the  mortgagor.10  There  can  be  no  dedication  during  a 
tenancy,  however  long  continued,  unless  from  the  fact  of  notice  or  otherwise 
of  the  concurrence  by  the  tenant  in  the  dedication. n  A  married  woman,  though 
she  cannot  convey  her  estate,  may  have  a  dedication' of  a  right  of  way  over  it 
presumed  against  her.12  A  trustee  may  make  a  valid  dedication  of  the  trust 
lands  unless  the  dedication  be  inconsistent  with  the  object  of  the  trust.13  A 

1  Wyman  v.  State,  13  Wis.  663;  Worth  6  Wirt    v.    McEnery,    6    Am.    &    Eng. 
v.  Dawson,  i  Sneed  (Tenn.)  59;  Harding  Corp.    Cases    105;  U.    S.    v.    Chicago,  7 
v.  Jasper,   14  Cal.  643;  State  v.  Thomas  How.  (U.  S.)  185;  Brown  v.  Manning,  6 
(Del.),  4  Harr.  568.  Ohio  298. 

2  Herhold  et  al.  v.  City   of  Chicago,  6  7  Smith  v.  Smith,  34  Kans.  293. 

Am.    &    Eng.  Corp.  Cases    119;    Batch-  8  2  Smith  Lead.  Cas.  95;  Detroit  v.  Rail- 
elder    v.    Wakefield,    8     Cush.     (Mass.)  road  Co.,  23  Mich.  173. 
243;  Knowles    v.   Nichols,    2    R.   I.    198;  9  Gentleman  v.  Soule,  32  111.  271;  Bush- 
Carpenter  v.  Gwynn,  35  Barb.  (N.Y.)  395.  nell  v.  Scott,  21  Wis.  451. 

3  State   v.  Strong,  25  Me.   297;  Proctor  10  City  of  Moberly  v.  McShane,  7  Am. 
v.  Lewiston,  25   111.  153.  &  Eng.  Corp.  Cases  405. 

4Bushnell   v.  Scott,  21  Wis.  457;  Kyle  "Davis  v.   Stephens,  7  Carr.  &  Payne 

v.  Logan,  87  111.  67.  570;  Schenely   v.   Com.,   36    Pa.    St.    29; 

6  Hoole  v.   Attorney-General,  22   Ala.  State  v.  Atherton,  16  N.  H.  203;  83  Am. 

190;  Post   v.   Pearsall,  £O  Wend.  (N.  Y.)  Dec.  264. 

in;  Irwin  v.  Dixon,  9  How.  (U.  S.)  10;  12  Schenely  v.  Com. ,36  Pa.  St.  29;  Ward 

Lee    v.    Lake,    14    Mich.    12;    Leland    v.  v.  Davis,  3  Sandf.   (N.  Y.)  50*2;  Todd  v. 

Portland,  2  Oreg.  46;   Baxter  v.  Taylor,  Railroad  Co.,  19  Ohio  St.  514. 

i  Nev.  &  M.  13;  Fisk  v.  Havana,  88   111.  13  Rex  v.   Leake,  5    B.  &    Adolph  469; 

208.  Prudden  v.  Lindsley,  29  N.  J.  Eq.  615. 


485  DEDICATION   TO   PUBLIC   OF  RIGHTS  IN  LAND.          §705. 

corporation  may  make  a  valid  dedication  unless  such  act  be  inconsistent  with 
the  charter  and  objects  of  the  corporation.1 

The  parties  to  a  dedication  are  the  dedicator  and  the  public.  The  right 
or  easement  dedicated  inures  immediately  to  the  public  and  is  limited  and 
defined  only  by  the  wants  of  the  community  at  large.2  Where  land  is  dedi- 
cated by  a  common-law  dedication  and  there  is  no  municipal  body  with 
authority  to  make  a  formal  acceptance  of  the  same,  an  acceptance  by  the 
public  by  actual  use  of  the  property 'dedicated  and  for  the  uses  for  which  the 
dedication  was  made  will  be  sufficient.3 

705.  Effect  of  Dedication. — When  lands  have  been  dedicated  to  the  public 
and  the  public  has  enjoyed  the  use  of  the  easement  dedicated,  and  rights  have 
been  acquired  by  individuals-  or  by  the  public  by  virtue  of  such  dedication, 
the  former  owners  are  precluded  from  revoking  the  dedication. 4  Dedication 
will  preclude  the  party  making  the  appropriation  from  reasserting  any  right 
over  the  land,  at  least  as  long  as  it  remains  in  public  use,  although  there 
never  was  a  grantee  capable  of  taking  the  fee.5  Where  a  street  has  been 
dedicated  to  the  public  by  the  owner  of  the  fee,  and  where  it  has  been  used  as 
a  public  street  for  a  number  of  years,  the  dedicator  cannot  close  the  street 
because  of  the  non-performance  of  an  oral  condition  imposed  at  the  time  the 
street  was  opened. 6  Where  land  is  dedicated  to  the  public  for  a  particular 
use,  the  dedicator  retains  all  rights  not  inconsistent  with  the  particular  public 
use  granted.7  After  land  has  been  dedicated  as  a  public  street  usually,  the 
title  may  not  be  acquired  by  adverse  possession  however  long  or  in  what 
manner  the  land  is  held.8* 

In  a  case  where  there  is  a  variance  between  the  plat  and  survey  of  a  town- 
site  the  lines  actually  run  must  control,  and  these  lines  are  conclusive  against 
the  purchaser.9  A  dedication  of  a  portion  of  land  for  a  private  alley  is  a 
dedication  of  it  to  the  use  of  the  persons  who  shall  thereafter  become  owners 
of  the  lots  included  in  the  plat,  but  not  to  the  use  of  owners  of  land  situated 
elsewhere.10  Where  an  easement  in  lands  is  dedicated  to  public  use,  the  public 
has  no  right  in  the  land  inconsistent  with  such  use,  and  cannot  convey  it 
away.11  A  bona  fide  purchaser,  without  notice,  of  lands  previously  dedicated 

1  Macon      v.    Franklin,     12     Ga.     239;  Haynes  v.  Thomas,  7  Ind.  38;  Leffler  v. 

Wright  v.  Victoria,  4  Tex.  375;  Green  v.  Burlington,  18  Iowa  361. 

Canaan,   29   Conn.     157;    Canal    Co.    v.  5  Kennedy  v.  Jones,  n  Ala.  63;  Adams 

Hull,  i  Man.  &  Gr.  392;    Boston    v.    Le  v.  Saratoga' R.  Co.,  n  Barb.  (N.  Y.)  414. 

Craw,     17    How.    (U.  S.)    420;    State    v.  6Port   Huron   v.  Chadwick,    52   Mich. 

Woodward,  23  Vt.  92.  320. 

'Cincinnati  v.  White,    6    Pet.    (U.   S.)  7  Stevenson  v.  Chattanooga,  4  Am.   & 

431;   Post  v.  Pearsall,  22  Wend.   (N.  Y.)  Eng.  Corp.  Cases  503. 

425;  State   v.  Wilkinson,  2  Vt.  480;  Wil-  8  City   of   Visalia    v.  Jacob,  6   Am.  & 

Hams   v.  Society,  i    Ohio   St.  478;  Ken-  Eng.  Corp.  Cases  115. 

nedy  v.  Jones,  n  Ala.  63.  9  Hoist  v.  Streitz,  16  Neb.  249. 

3Maywood    Co.    et   al.    v.   Village    of  10Cihak  v.  Kleke,  17  111.  App.  124. 

Maywood  (111.),  5  N.  E.  Rep.  866.  "  Pomeroy  v.  Mills,  3  Vt.  279;  Alves  v. 

4  Mayor     v.    Franklin,     12    Ga.     239;  Henderson,  16  B.  Mon.  (Ky.)  131. 

*  See  Sees.  534  and  682-685,  supra. 


§  706.          OPERATIONS  PRELIMINARY    TO    CONSTRUCTION.  486 

to  public  use  acquires  a  good  title.1  Dedication  by  a  city  of  a  portion  of 
water-front  for  public  use,  as  a  free  dock,  is  merely  the  grant  of  an  easement, 
and  the  right  of  entry  and  possession,  subject  to  the  easement,  remains  in  the 
city.2  Where  land  is  dedicated  for  purposes  which  are  strictly  public  there 
cannot  be  a  dedication  to  a  limited  portion  of  the  public,  but  the  dedication 
must  be  to  the  public  generally.3 

Where  one  who  has  offered  to  dedicate  land  for  a  public  street  conveys 
such  land  before  his  offer  is  accepted,  the  conveyance  operates  as  a  revocation 
of  the  offer;4  but  where  one  dedicates  land  for  public  streets  by  platting  it 
into  lots  and  streets  and  filing  map  thereof  he  does  not,  by  acts  showing 
revocation  of  dedication  before  acceptance  as  to  some  of  the  streets,  revoke 
the  entire  original  dedication.5  The  death  of  the  owner  is  a  revocation  of  a 
proffered  dedication  of  streets,  and  an  acceptance  thereafter  by  the  village 
gives  it  no  rights  in  the  streets.6 

706.  Acceptance  of  Easement  Dedicated. — A  dedication  may  be  complete 
so  as  to  conclude  the  dedicator  and  those  claiming  under  him,  without  any 
acceptance  on  the  part  of  the  public.  Where  the  dedication  has  been  made 
under  a  statute  and  the  requirements  of  the  statute  complied  with,  no  accept- 
ance by  the  public  is  necessary.7  In  order,  however,  to  charge  the  muni- 
cipality or  local  district  with  the  duty  to  repair,  or  make  it  liable  for  damages 
for  injuries  because  it  allowed  a  street  or  highway  to  be  or  remain  out  of 
repair,  there  must  be  an  acceptance  of  the  dedication,  which  acceptance  must 
be  made  by  the  public  or  the  authorized  public  authorities.8  The  acceptance 
need  not  be  made  immediately  upon  the  offer  of  the  dedicator  to  give  the 
public  a  certain  use  of  his  lands,  but  may  be  made  at  any  time  during  the 
continuance  of  the  gift  and  before  the  tender  is  withdrawn.9 

The  decisions  are  not  uniform  as  to  whether  the  acceptance  may  be  made 
by  the  public  or  whether  it  must  be  made  by  the  proper  authorities.  The 
English  rule  seems  to  be  that  if  there  has  been  an  acceptance  by  the  public 
there  need  be  no  acceptance  by  the  parish. 10  In  the  United  States  the  rule 
does  not  seem  to  be  settled,  but  the  weight  of  authority  seems  to  establish  the 
doctrine  that  the  dedication  of  a  highway  must  be  accepted  by  the  proper 

1Schuman  v.  Homestead,  I  Cent.  Rep.  571;  Jordan  z/.City  of  Chenoa  (111.  Sup.), 

914.  47  N.  E.  Rep.  191;  Gedge,  etc.,  v.  Com- 

2  San  Francisco  v.  Calderwood,  91  Am.  monwealth  (Ky.),  9  Bush  61;  Kennedy 

Dec.  542.  v.  City  of  Cumberland  (Md.),  9  Atl.  Rep. 

8  Trerice  v.  Barteau,  54  Wis.  99.  234  [1886];  Cincinnati  v.   White,  6  Pet. 

4  City  of  Chicago  v.    Drexel    (111.),  30  (U.  S.)   431;    Noyes    v.   Ward,   19  Conn. 
N.  E.  Rep.  774.  250:*  State  v.  Trask,  6  Vt.  355. 

5  Eckerson  v.  Village    of   Haverstraw,  9Simmons  v.  Cornell,  I  R.  I.  519;  Baker 
39  N.  Y.  Supp.  635.  v.  Johnson,    21   Mich.    319;   Crockett  v. 

6  People  v.  Kellogg,  22  N.  Y.  Supp.  490.  Boston,  5  Cush.  (Mass.)  182. 

7  Baker  v.  St.  Paul,  8  Minn.  491.  10  Rex  v.   Leake,   5    B.  &  Adolph.  469; 
8Brigantine    v.  Holland  Trust  Co.  (N.       Canal    Co.    v.   Hall,  i    Mam.  &   Gr.  392; 

J.    Ch.),    35    Atl.    Rep.    344;  Wheatfield       Rex  v.  Lyon,  5  Dow.  &  Ry.  499;  Regina 
v.    Grundman,     164    111.     250;  Alton    v.       v.  Patrie,  30  Eng.  Law  &  Eq.  207. 
Meeuwenberg    (Mich.),    66    N.  W.    Rep. 


487  DEDICATION    TO   PUBLIC  OF  RIGHTS  IN  LAND.          §  7O7. 

authorities  charged  with  its  repair.1  To  constitute  a  dedication  of  lands  to 
the  public  there  must  have  been  an  acceptance  thereof  by  the  public,  which 
may  be  manifested  by  use  or  the  expenditure  of  public  money  in  the  improve- 
ment of  the  land;  but  a  mere  occasional  user  of  a  highway,  mostly  by  persons 
traveling  on  horseback,  without  any  work  being  done  upon  the  road,  on 
which  underbrush  is  allowed  to  grow  up  so  as  to  render  the  road  nearly  im- 
passable, is  not  sufficient  to  constitute  an  acceptance.3  Evidence  that  streets 
dedicated  to  a  city  were  kept  open  and  used  as  public  passways,  and  that  the 
city  graded  and  graveled  them,  is  sufficient  to  establish  an  acceptance.3  If 
the  need  for  a  public  alley,  at  the  time  of  its  dedication,  be  small,  slight 
evidence  of  acceptance  by  use  of  the  public  is  sufficient.4 

Where  a  landowner  files  a  map  of  a  number  of  blocks  owned  by  him,  on 
which  one  block  is  marked  "  Central  Park,"  circulates  copies  of  the  map,  and 
states  in  an  advertisement,  and  announces  through  an  auctioneer,  while  sell- 
ing the  adjacent  blocks,  that  such  a  block  is  reserved  for  a  park,  actual 
acceptance  is  not  requisite  to  complete  the  dedication,  since  acceptance  will 
be  presumed  from  the  benefit  arising  from  the  dedication.5 

There  is  no  established  standard  by  which  the  use  necessary  to  determine 
an  acceptance  by  the  public  may  be  measured  and  declared  to  be  sufficient. 
A  use  which  would  naturally  follow  from  the  character  of  the  place  and  the 
settlement  of  the  community  is  sufficient.6  The  principle  that  acceptance  by 
the  required  authorities  may  be  presumed  from  long  user  by  the  public  has 
been  accepted,  in  many  cases,  as  one  method  by  which  such  acceptance  may 
be  legally  shown.7  Unless  the  method  of  acceptance  by  the  proper  local 
authorities  be  prescribed  by  statute  no  particular  or  formal  proceedings  to 
establish  an  acceptance  are  necessary;  I  he  acceptance  may  be  implied  in  case 
of  a  road  by  any  acts  which  recognize  the  road  as  a  public  highway.8 

707.  Non-user  of  Right  Dedicated. — The  early  doctrine  of  the  common 
law  established  the  principle  that  when  a  dedication  had  been  made  there 
could  be  no  abandonment  or  loss  of  the  right  dedicated  by  mere  non-user  on 
the  part  of  the  public.  More  recent  decisions,  however,  have  departed  from 

1  Hobbs  v.    Lowell,    19    Pick.    (Mass.)  81  Cal.  70.    And  see  Reid  v.  Board  of  Ed. 
405;   Dillon    on    Mun.  Corp.,  §   505;  Os-  of   Edina,  73    Mo.  295    [1880];    Eureka, 
wego  v.  Canal  Co.,  2  Selden  (N.  Y.)  257;  City  of,   v.  Croghan,    19   Pac.    Rep.  485 
Requa    v.    Rochester,    45     N.    Y.     129;  [1889];  Buffalo,  City  of,   v.  Delaware,  L. 
Kelly's  Case,  8  Gratt.  (Va.)  632;  Blodget  &  W.  R.  Co.,  39  N.  Y.  Supp.  4. 

v.  Royalton,  14  Vt.  288.  6  Winslow  v.  City  of  Cincinnati,  6  Ohio 

2  Ro'senberger  v.   Miller,   I    Mo.    App.       N.  P.  47. 

Rep.  640.  7Curtissz/.  Hoyt,  19  Conn.   154;  Muz- 

3  Smith  v.  City   of   Buffalo,    35    N.  Y.  zey   v.    Davis,    54   Me.    361;    Oswego  v. 
Supp.  635;  City  of  Abilene  v.  Wright,  46  Canal  Co.,  6  N.  Y.  257;  Hemphill  v.  Bos- 
Pac.    Rep.  715;    Orriel    v.    City   of   Ft.  ton  (Man.),  8  Cush.  195;  Manderschild  v.. 
Worth  (Tex.),  32  S.  W.  Rep.  443;  People  Dubuque,  29  Iowa  73. 

v.  Underbill,  23  N.  Y.  Supp.  388.  8  Green  v.  Convon,  29  Conn.  157;  Gibbs 

*  Taraldson  v.  Town  of  Lime  Springs  v.  Larrabee,  37  Me.  506;  Detroit  v.  Rail- 

(Iowa),6oN.  W.  Rep.  658.  road  Co.,  23  Mich.  173;  Parsons  v.  Trus- 

5  Archer  v.  Salinas  City  (Cal.),  28  Pac.  tees,  42  Ga.  529. 

Rep.  839,  distinguishing  People  v.  Reed, 


§  7°8'          OPERATIONS  PRELIMINARY    TO    CONSTRUCTION.  488 

the  strictness  of  this  rule. J  Where  land  has  been  dedicated  to  the  public,  the 
dedicator  holds  such  land  subject  to  the  easement  granted;  but  when  the 
public  has  not  exercised  its  right  for  a  long  space  of  time  and  it  is  evident 
that  the  public  has  abandoned  the  use  of  the  land,  then  it  is  held  that  the 
right  of  the  public  is  extinguished  and  the  owner  holds  the  land  free  from  the 
easement.2 

Where  land  was  dedicated  ' '  for  a  city  school  provi4ed  the  city  or  com- 
munity do,  within  the  time  of  five  years  from  this  date,  respectively  improve 
the  same/'  and  no  improvements  were  made  during  that  time,  it  was  held 
that  the  title  did  not  pass  from  the  proprietor,  and  that  the  land  was  subject 
to  seizure  by  creditors  of  the  proprietor.3  Land  dedicated  to  public  use  for 
school  purposes  reverts  to  the  dedicator  upon  its  abandonment  for  such 
purposes.4 

Where  a  city  acquires  rights  in  a  street  by  dedication,  its  rights  will  be 
barred  by  non-acceptance  and  non-user  on  its  part,  and  by  the  adverse  posses- 
sion of  such  premises  by  private  persons  and  those  through  whom  they  claim.5 
But  where  a  town-site  company  filed  a  plat  with  a  square  thereon  designated 
as  "  Seminary  Square/'  and  sold  and  conveyed  lots  from  its  plat,  and,  until 
it  went  out  of  existence,  never  exercised  any  control  over  the  square,  and  it 
was  always  treated  as  public  ground,  and  for  twenty  years  was  not  assessed, 
the  fact  that  it  had  been  vacant  for  that  time  did  not  bar  the  board  of  educa- 
tion from  taking  possession  when  a  necessity  for  its  use  for  educational 
purposes  occurred.6 

Where  land  was  clearly  dedicated  for  a  street,  it  was  not  necessary  that  it 
should  be  accepted  by  the  public  or  used  for  that  purpose  within  any  limited 
time,  in  the  absence  of  a  condition  to  that  effect;  and  hence  mere  lapse  of 
time  of  twenty-three  years,  without  acceptance  or  user,  was  held  not  to  con- 
stitute, an  abandonment.7 

In  Texas  it  has  been  held  that  by  the  abandonment  of  a  road  as  a  high- 
way, the  land  covered  by  the  highway,  according  to  the  civil  law,  became 
vacant  public  domain,  subject  to  entry,  and  did  not  belong,  as  at  common 
law,  to  proprietors  whose  lands  were  bounded  by  the  road.8 

708.  Limits  and  Qualifications, — Property  dedicated  to  the  use  of  the 
public  may  be  said  to  be  restricted  to  the  use  for  which  it  was  intended  to  be 
dedicated.  This  rule  has  been  construed,  however,  to  include  such  uses  as 
are  consistent  with  or  necessary  to  the  principal  use.9 

5  Knight  v.  Heaton,  22  Vt.  480;  Hillory  *  School  Dist.  of  Johnson  Co.  v.  Hart, 

•v.  Walker,   12  Veasey  139;  Beardslee  v.  28  Pac.  Rep.  741. 

French,  7  Conn.  125.  5  City  of  Edwardsville  v.  Barnsback,66 

8  Cooper  v.  Detroit,  42  Mich.  584;  Fair-  111.  App.  381. 

field  v.  Williams,  4  Mass.  427;  U.  S.  v.  6  Wilgus  v.  Board  of  Com'rs  (Kan.),  38 

Harris,    i    Sumner    21;  Railroad    Co.   v.  Pac.  Rep.  787. 

Patch,  28  Kan.  470;  Neville  Road  Case,  8  7  Baltimore,  City  of,  v.  Frick  (Md.),  33 

Watts  (Penn.)  172;    Barclay    v.   Howell,  Atl.  Rep.  435. 

6  Pet.  (U.  S.)  498.    '  8  Mitchell  v.  Bass,  33  Tex.  259. 

8  Kemper  v.  Collins,  II  S.  W.  Rep.  245  9  Warren  v.  Grand  Haven,  30  Mich.  24; 

[1889].  Bayard  v.  Hargrove,  45  Ga.  342;  City  v. 


489  DEDICA  TiON    TO  PUBLIC  OF  RIGHTS  IN  LAND.          §  709. 

Where  land  was  dedicated  and  marked  on  a  town  plat  "  Market  Square/' 
it  was  held  that  this  fact  did  not  so  conclusively  show  the  intention  of  the 
owner  that  it  should  be  used  for  market  purposes  as  to  defeat  the  dedication 
if  the  town  failed  to  use  it  for  that  purpose.1  A  dedication  of  land  to  the 
public  for  a  highway  may  be  made  subject  to  a  right  to  designate  a  portion 
thereof  for  railroad  purposes ;  and  when  such  portion  has  been  designated  and 
devoted  to  railroad  purposes  the  public  use  will  be  suspended,  and  remain 
suspended  so  long  as  such  portion  is  devoted  to  such  railroad  purposes.2 
The  presumption  in  regard  to  a  street,  in  the  absence  of  direct  evidence,  is 
that  the  public  has  acquired  an  easement  for  highway  uses  only  in  the  land 
embraced  by  the  street.  A  dedication  of  land  for  street  purposes  does  not 
authorize  the  legislature  to  permit  the  construction  of  a  steam  railroad  with- 
out making  compensation  to  the  owner  of  the  fee.3* 

If  dedicated  property  be  used  for  purposes  other  than  those  intended  by 
the  dedicator  and  for  which  the  dedication  was  made,  then  not  only  the  dedi- 
cator but  any  property  owner  will  have  a  remedy  in  equity  to  prevent  the 
wrongful  use  and  to  enforce  the  proper  use.4 

When  property  is  once  dedicated  to  the  use  of  the  public  a  municipal 
corporation  or  other  trustee  for  the  public  cannot  extinguish  such  public  use 
or  alienate  the  land,  nor  can  such  property  be  made  liable  for  the  debts  of  a 
municipality.5 

709,  Instances  of  Dedication. — Dedication  is  a  subject  for  consideration 
with  surveyors,  engineers,  and  landscape  architects  in  the  performance  of 
their  professional  duties.  The  last  named  especially  delight  in  beautiful 
parks,  beaches,  and  other  public  features,  and  it  is  a  simple  matter  to  sperad 
their  plans  and  dreams  upon  paper  to  the  delight  of  the  landowner.  No 
doubt  such  features  are  attractive  to  home-seekers  and  real-estate  prospectors, 
but  all  parties  should  understand  that  when  lots  are  sold  or  purchased  with 
such  features  set  forth  it  is  business  and  not  a  dream  nor  remote  possibility, 
but  that  the  owner  is  irrevocably  bound  by  such  plan,  and  that  he  may  not 
thereafter  use  for  private  purposes  the  land  designated  for  such  features. 6  f 

The  use  of  the  proposed  streets  to  describe  land  conveyed  by  the  land- 
owner raises  a  presumption  at  least  of  a  dedication  of  the  streets  so  long  as 
the  deed  stands  unreformed.7  A  sale  of  lots  according  to  a  plan  showing 

Hinkson;  87  111.  587;  Price  v.  Thompson,  Newport  (Ky.),  12  B.  Mon.  538. 

48  Mo.  361 ;  Rutherford  v.  Taylor,  38  Mo.  5  Price  v.  Thompson,  48  Mo.  363;  Alton 

315;  Warren  v.  Lyons,  22  Iowa  351.  v.  Co.,  12  111.  60;  Church  v.  Hoboken,  33 

1  Scott  v.  Des  Moines.  64  Iowa  438.  N.  J.  L.  13;  Board  v,  Edson,  18  Ohio  St. 

2  Avers  v.   Penn.  R.  Co.  (N.  J.),  3  Atl.  221;   Seebolt  v.  Shitler,  34   Pa.  St.   133; 
Rep.  885.  Warren  v.  Lyons,  22  Iowa  351;  Brooklyn 

3  Fanning  v.  Osborne    (N.  Y.),  3  Cent.  Park  Comm'rs  v.   Armstrong,  45  N.  Y. 
Rep.  453.  234;  New   Orleans   v.  United  States,   10 

*  Price  v.  Church,  4  Ohio  515;  Hardy  v.  Pet.  (U.  S.)  662. 

Memphis  (Tenn.),  10  Heisk.  127;  Harris  6  Evans   v.    Blankenshirm    (Ariz.),    39 

v.   Elliott,  10  Pet.  (U.  S.)  25;   Carter  v.  Pac.  Rep.  812. 

City  of  Portland,  4  Oreg.  339;  County  z/.  'White  v.  Tide-water   Oil    Co.  (N.  J. 

*  See  Sees.  756-780,  infra.  \  See  Sec.  703,  supra. 


§  7°9-          OPERATIONS  PRELIMINARY    TO    CONSTRUCTION.  490 

them  to  be  on  a  street  implies  a  grant  or  covenant  to  the  purchaser  that  the 
street  shall  be  forever  open  to  the  use  of  the  public,  and  operates  as  a  dedica- 
tion thereof.1  It  will,  as  between  the  grantor  and  grantee,  amount  to  an 
irrevocable  dedication  of  the  street;2  and  other  cases  hold  it  operates  not  only 
in  favor  of  those  who  buy  from  the  donor,  but  also  in  favor  of  all  who  pur- 
chase in  the  general  plan  of  the  locality  when  the  way  was  located.3 

If,  however,  in  every  deed  or  lease  made  by  the  owner  a  clause  be  inserted 
to  the  effect  that  the  reference  to  the  street  is  intended  solely  for  the  purpose 
of  description,  and  is  not  intended  to  be  a  dedication  of  it  for  the  public  use 
or  as  a  public  highway,  there  will  be  no  dedication  of  the  street;4  and  the  fact 
that  the  street  was  graded,  paved,  and  curbed,  and  that  lots  had  been  sold 
and  leased  bounding  on  the  street,  and  that  houses  had  been  built  and  leased 
fronting  thereon,  and  that  the  gas  company  ran  its  pipes  through  the  street  to 
light  these  houses  and  erected  city  gas-lamps,  and  that  various  vehicles  drove 
over  the  street  to  accommodate  the  residents  of  the  houses,  will  not  alter  the 
case.  If  the  owners  maintain  visible  obstructions  across  one  end  of  a  street, 
while  the  public  is  using  the  remainder,  and  purchasers  of  abutting  lots  are 
told  that  the  street  is  a  private  way,  though  lots  be  sold  according  to  an 
unrecorded  plat  on  which  the  strip  involved  was  designated  as  a  street,  it  will 
not,  it  seems,  amount  to  a  dedication.5 

The  mere  fact  that  a  public  building  is  set  back  several  feet  from  the  front 
boundary  of  the  lot,6  or  that  a  railroad  company  fails  to  fence  its  right  of  way 
and  permits  a  portion  of  the  public  to  cross  it  at  a  certain  place,7  or  that  the 
public  has  used  its  wharves  and  the  city  has  lighted  them,8  or  that  an  owner 
of  land,  in  fencing  the  same,  left  a  strip  along  a  section-line  from  8  to  12  feet 
wide,  which  he  permitted  the  public  to  use,  does  not  show  an  intention  to 
dedicate  any  land  within  his  inclosure.9 

Mere  permissive  user  of  a  way  is  insufficient  to  establish  a  dedication.10 
The  fact  that  the  owner  of  vacant  and  uninclosed  land  makes  no  dissent  to 
the  public's  traveling  over  it  in  a  certain  route  does  not  show  an  intention  to 
dedicate.11 

Ch.),  33  Atl.  Rep.  47;  Gt.   Northern  Ry.  way  is  evidence  tending,   in  connection 

Co.  v.  St.    Paul  (Minn.),  63  N.  W.    Rep.  with    other  facts,   to   prove  it.     Neal    v. 

96.  Hopkins  (Md.),  39  Atl.  Rep.  322  [1898]. 

1  Quicksall    v.    Philadelphia,    177    Pa.  7  Vicksburg.    etc.,    R.    Co.    v.    Monroe 
301.  (La.),  20  So.  Rep.  664;    Brunswick,  etc., 

2  New  York,  etc.,  R.  Co.  v.  South  Am-  R.  Co.  v.  Waycross  (Ga.),  17  s-  E.  Rep. 
boy  (N.  J.  Sup.),  30  Atl.  Rep.  628.  674. 

3'  Wilson    v.    Acree    (Tenn.),    37  S.  W.  8  Buffalo  v.  D.,  L.  &  W.  R.  Co.  (Sup.), 

Rep.  90.  39  N.  Y.  Supp.  4. 

4  Baltimore  v.  Fear  (Md.),  33  Atl.  Rep.  9  Oyler  v.  Ross  (Neb.),  66  N.  W.  Rep. 

637.  1099. 

6  People  v.  Sperry  (Cal.),  4§  Pac.  Rep.  lo  Wils6n  v.   Acree  (Tenn.  Sup.),  37  S. 

723.  W.  Rep.  90. 

6  Baker  v.  Squire,   i    Mo.    App.    Rep.  n  Tutwiler   v.    Kendall   (Ala.),    21  So. 

683.    Yet  while  not  in  itself  a  dedication,  Rep.  332. 
the  moving  back  of  a  fence  from  a  high- 


CHAPTER  XXXVI. 
EASEMENTS.     RIGHTS   OF   WAY   IN   GENERAL. 

711.  Rights  ofWay — How  Created. — Rights  of  way  are  usually  created 
by  deed  or  grant  by  the  owner  of  the  land.  In  case  of  an  express  grant  for  a 
consideration  it  assumes,  of  course,  the  regular  form,  and  there  is  little  that 
can  be  said  about  it  except  in  the  interpretation  of  its  terms.  Rights  of  way, 
however,  are  also  frequently  created  by  reservations  of  certain  rights  and 
privileges  to  the  grantor  when  he  parts  with  his  other  interests  In  the  property. 
A  reservation,  in  a  deed,  of  a  right  of  way  ' '  over  the  east  lot  to  and  from  the 
wood  lot  "  was  held  definite  in  connection  with  the  fact  that  a  natural  and 
well-defined  road  existed  at  the  time.1 

Rights  of  way  created  by  an  agreement  between  a  person  and  his  grantor 
that  they  will  lay  out  certain  streets  and  highways,  and  that  each  party  and  his 
grantees  are  to  have  free  access  to,  and  the  use  of,  such  streets  or  roads,  are 
not  easements  personal  to  such  person,  but  are  appurtenant  to  the  land  which 
he  owns.2 

A  reservation  in  a  deed  of  "a  reasonable  right  of  way  across  the  land  " 
conveyed  does  not  entitle  the  owner  of  the  dominant  estate  to  inclose  a  right 
of  way  with  fences.3  A  contract  providing  that  the  several  abutting  owners 
who  have  an  easement  in  a  private  road  shall  keep  it  private  and  in  good 
repair  does  not  require  them  to  erect  fences  along  the  line  of  the  road  in  front 
of  their  respective  estates.4 

If  the  owner  of  a  tract  of  land  has  built  a  private  way  over  one  part  of  it 
to  another  as  a  means  of  egress  and  ingress  to  and  from  a  public  highway, 
which  private  way  is  apparent,  continually  used,  and  reasonably  necessary  to 
the  use  and  enjoyment  of  the  lands  to  which  it  is  constructed,  and  also  adds 
materially  to  its  value,  and  if  he  conveys  by  deeds  of  the  same  date  the  tracts 
of  land  in  two  parts  to  his  two  children,  one  part  being  that  portion  of  the 
tract  over  which  the  way'passes,  then  the  one  will  take  his  part  subject  to 

1  Wells    v.    Tollman    (Sup.),    34  N.  Y.       Rep.  590;  Moffitt  v.  Lytle  (Pa.),  30  All. 
Supp.  840.  Rep.  922. 

2  Valentine     v.    Schreiber     (Sup.),  38  4 Sachs    v.    Cordes,    n    Ohio   Cir.  Ct. 
N.  Y.  Supp.  417.                                                     Rep.  145. 

'Sizer   v.    Quinlan   (Wis.),   52    N.    W. 

491 


§  ?13-          OPERATIONS  PRELIMINARY    TO    CONSTRUCTION.  49 2 

such  way  as  an  easement,  and  the  other  will  enjoy  the  uninterrupted  use  of 
the  same.1 

712.  Rights  of  Way  the  Subject  of  a  Grant. — An  easement  of  a  right  of 
way  over  land,2  or  of  a  right  to  maintain  a  dam  over  a  portion  of  the  land,  is 
an  incumbrance  upon  the  land.3     It  is  immaterial  that  the  grantee  knew  when 
the  deed  was  made  that  the  dam  was  so  maintained.4 

A  right  of  way  over  the  land  of  another  is  an  interest  in  lands,  and  can 
only  be  created  by  grant,  either  by  deed  or  by  prescription  implying  a  grant.5 
A  deed  of  "a  parcel  of  land  for  the  purposes  of  a  road"  conveys  only  an 
easement.6 

A  grant  to  A  and  B,  their  heirs  and  assigns,  of  the  right  to  erect,  main- 
tain, and  enjoy  a  wharf  on  land  under  water  belonging  to  the  state,  conveys 
a  fee  in  the  land  under  the  wharf.7 

An  agreement  between  plaintiff  and  his  grantor  that  they  should  lay  out 
certain  roads  along  and  across  their  adjoining  premises,  and  that  each  party 
thereto  should  have  free  and  unrestricted  right  of  access  to  the  said  roads,  is- 
equivalent  to  an   express  grant  of  right  of  way  to  plaintiff.8     An  easement 
cannot  be  enlarged  beyond  the  terms  of  the  grant.9 

An  instrument  which  does  not  describe  the  land  on  which  the  easement  is 
to  be  imposed  is  insufficient  to  create  one.10  If  the  location  and  limits  of  a 
private  way  reserved  in  a  deed  are  not  specified,  it  will  be  construed  to  mean 
a  reasonably  convenient  and  suitable  way;  and  parol  evidence  of  the 
topography  of  the  premises,  and  of  the  comparative  benefit  and  injury  to  each 
party  of  routes  proposed,  is  admissible  to  place  the  court  in  the  light  of  the 
circumstances  under  which  the  way  was  reserved. u  A  burden  analogous  to 
an  easement,  as  a  right  of  way,  may  be  created  in  an  estate  for  a  fixed  period 
by  the  lessee  or  owner  of  the  estate,  and  such  right  of  way  will  be  protected 
by  the  courts.12 

A  deed  giving  the  grantee  a  right  to  erect  bathing-houses  on  abutting  land 
of  the  grantor,  and  to  enter  thereon  and  to  use  such  houses  undisturbed  at 
any  time,  creates  an  easement  in  the  grantee  over  such  abutting  land.13 

713.  Maintenance  of  Right  of  Way  over  Another's  Land. — The  owner 
of  land  subject  to  a  right  of  way  is  not  required  to  keep  it  in  repair,14  and 

1  Baker  v.  Rice  (Ohio),  47  N.   E.   Rep.  Rep.  914. 

654  [1897];  Meredith  v.  Frank  (Ohio),  47  8  Valentine    v.      Schreiber    (Sup.),    38 

N.  E.  Rep.  656.  N.  Y.  Supp.  417. 

2De    Roachemont   v.   Boston,  etc.,  R.  9  McCabe  v.  Hood  (Cir.  Ct.),  I  O.  C.  D. 

Co.  (N.  H.),  15  Atl.  Rep.  131  [1888].  292. 

3  Huyck  v.   Andrews  (N.  Y.),  20  N.  E.  10  Nunnelly     v.      Southern     Iron    Co. 

Rep.  581  [1889].  (Tenn.),  29  S.  W.  Rep.  361. 

*  Huyck  v.   Andrews  (N.  Y.),  20  N.  E.  "Gardner  v.  Webster  (N.  H.),  15  Atl. 

Rep.  581  [1889].  Rep.  144  [1888]. 

5  Long  v.   Mayberry  (Tenn.    Sup.),  36  12  Newhoff  z/.'Mayo  (N.  J.),  23  Atl.  Rep. 

S.  W.  Rep.   1046;  Mumford  v.  Whitney,  265. 

13  Wend.  380  [1836].  1S  Eckert  v.  Peters  (N.  J.  Ch.),  36  Atl. 

6Wason  v.   Pilz  (Oreg.),  48  Pac.  Rep.  Rep.  491. 

701.  u  Nichols  v.  Peck  (Conn.),  39  Atl. Rep. 

7  Roberts  v.   Brooks  (C.    C.),    71   Fed.  803  [1898]. 


493  RIGHTS   OF   WAY  IN  GENERAL.  §7*5- 

whenever  an  easement  is  to  be  enjoyed  through  artificial  means  or  appliances, 
the  owner  of  the  servient  estate  is  not  bound  to  keep  such  appliances  in  order 
unless  that  duty  is  imposed  by  the  contract.1 

A  promise  by  a  grantor  that  the  grantee  might  have  a  road  over  the 
grantor's  premises  if  he  fenced  such  road  was  held  not  a  dedication  of  the  land 
covered  by  the  road,  though  the  grantee  did  fence  it.2  A  deed  to  a  person, 
his  heirs  and  assigns,  for  the  sole  purpose  of  an  alley  to  be  used  in  common 
with  the  owners  of  other  property  adjoining,  conveys  only  an  easement  and 
dedicates  the  land  for  use  as  an  alleyway.3  ,  A  reservation  in  the  deed  of  a 
right  of  way  over  land  does  not  destroy  the  fee  in  the  grantee,  but  only 
burdens  the  land  with  an  easement  of  a  right  of  way.4 

714.  Rights  of  Way  Appurtenant   to   Land. — A  deed  conveying  land 
expressly  bounded  by  the  side  of  a  highway,  the  fee  of  which  is  in  the  grantor, 
impliedly  grants  an  easement  of  light,  air,  and  access  in  the  adjoining  half  of 
the  highway,    of  which  the  grantor  cannot,    after  the  road  is  discontinued, 
deprive  the  grantee.5     The  deed  need  not  include  any  part  of  the  street,  and 
the  grantee's  right  of  way  in   such   street  is  not  affected  by  the  fact  that  its. 
lines  are  changed,  by  commissioners  afterwards  appointed  to  lay  out  streets, 
so  that  a  space  is  left  between  the  lot-lines  and  the  line  of  the  street  estab- 
lished by  the  commissioners.6     The  grantee  has  a  right  to  have  a  street  kept 
open,  though  it  did  not  previously  exist  except   on  maps,  and  though  the 
grantor,  before  making  the  deed,  told  the  grantee  that  he  did  not  intend  to- 
give  him  the  easement.7 

When  land  is  platted  by  the  owner  into  lots,  blocks,  streets,  and  alleys, 
and  lots  are  sold  by  him  with  reference  to  the  plat,  the  purchasers  acquire  a. 
right  of  way  in  the  streets,  etc.,  and  may  require  them  to  be  kept  clear  of 
obstructions  as  appertaining  to  the  lots.8 

Where  a  right  of  way  is  granted  to  a  company,  which  has  been  purchased 
and  acquired  from  a  grantor,  the  easement  of  the  right  of  way  is  appurtenant 
to  the  land,  and  the  company  has  no  right  to  permit  any  other  parties  to  use 
such  way.9 

715.  Implied  Rights  of  Way  by  Necessity. — Implied  grants  of  right  of 
way  across  land  are  looked  upon  with  jealousy,  construed  with  strictness,  and 

1  Bryn  Mawr  Hotel  Co.  v.  Baldwin,  12  6  Nichlas    v.    Keller   (Sup.),    41    N.  Y. 
Montg.  Co.  Law  Rep.  145.  Supp.  172. 

2  Cunningham  v    Hendricks  (Wis.),  62  7  Kenyon  v.  Hookway  (Sup.),  41  N.  Y. 
N.  W.  Rep.  410.  Sup.  230,  17  Misc.  Rep.  452;  Ford  v.  Har- 

3Pellishier    v.    Corker  (Cal.),   37   Pac.  ris  (Ga.),  22  S.  E.  Rep.  144;   Garstang  v. 

Rep.  465.  City  of  Davenport  (Iowa),  59  N.  W.  Rep. 

*Moffitt   v.   Lytle  (Pa.),   30   Atl.    Rep.  876;  Haight  v.   Littlefield  (N.  Y.  App.), 

922.  41  N.  E.  Rep.  696. 

6Holloway  v.  Delano  (Sup.),  18  N.  Y.  8  Field  v.  Barling  (111.),  37  N.  E.   Rep. 

Supp.     704;      Holloway     v.     Southmayd  850.     But  see  Mahler  v.  Brumder  (Wis.), 

(N.  Y.  App.),  34  N.  E.  Rep.  1047;  Barbour  66  N.  W.  Rep.  502. 

•v.    Lyddy   (Cir.   Ct.),  49  Fed.    Rep.  896;  *  Hoosier  Stone  Co.  v.  Malott  (Ind.), 

Fitzgerald  v.  Barbour  (C.  C.  A.),  55  Fed.  29  N.  E.  Rep.  412. 
Rep.  440. 


§7I5-          OPERATIONS   PRELIMINARY    TO    CONSTRUCTION.  494 

are  not  favored  except  in  cases  of  strict  necessity.1  It  is  not  merely  a  matter 
of  convenience.  If  the  grantor  has  another  mode  of  access  to  his  land,  how- 
ever inconvenient,  he  cannot  claim  a  way  by  implication  in  the  land  conveyed, 
though  he  may  have  had  the  use  of  a  way  over  it  to  a  public  highway  at, 
and  a  long  time  before,  the  conveyance,  and  of  which  fact  the  grantee  had 
notice  at  the  time.2 

A  person  who  buys  land  accessible  to  a  public  road  is  not  entitled  to  a 
way  of  necessity  to  another  road  across  other  lands  of  the  grantor,  although 
it  may  be  a  shorter  distance  and  the  first  road  may  be  merely  a  dirt  road,  while 
the  other  is  a  rock  road.3  No  right  of  way  by  necessity  exists  in  behalf  of  land 
which  borders  on  the  sea,  over  which  access  to  it  can  be  had,  the  sea  being  a 
public  way  in  itself.4 

When  an  owner  of  two  adjoining  tracts  of  land  has  conveyed  one  of  the 
tracts  to  another  and  there  is  no  access  to  the  one  which  he  has  kept  except 
over  the  land  so  conveyed,  a  reservation  of  a  right  of  way  will  be  implied  from 
the  necessity  of  the  case.5  If  a  grantee  has  no  access  to  his  land  except  over 
other  lands  of  the  grantor  or  as  an  alternative  by  passing  over  the  lands  of  a 
stranger,  he  has  an  implied  grant  of  a  right  of  way  over  the  grantor's  land  as 
an  incident  to  the  purchaser's  occupation  and  enjoyment.6  A  party  who  ia 
entitled  to  a  way  of  necessity  over  certain  land  cannot  be  deprived  of  his  right 
to  it  by  an  offer  of  a  private  way  over  any  other  lands  owned  either  by  himself 
or  others.7 

A  grant  of  land  which  has  no  outlet  to  the  street  except  over  the  grantor' & 
lot  carries  with  it,  from  necessity,  a  right  of  way  over  such  lot.8  There  is 
an  implied  reservation  of  a  right  of  way  to  the  grantor  and  those  claiming 
under  him  so  long  as  the  necessity  for  the  way  exists.9 

A  decree  establishing  in  a  grantee  a  way  of  necessity  over  his  grantor's 
land  is  erroneous  so  far  as  it  adjudges  that  the  way  be  opened  "  for  public 
use  and  travel."  10 

The  way  implied  from  necessity  is  the  nearest  way  or  the  way  most  easily 

'    accessible  to  the  highway  over  the  grantor's  land;  u  but  it  is  confined  to  the 

surface  of  the  grantor's  adjoining  land:  it  does  not  include  a  right  of  way 

iHildreth   v.   Googins   (Me.),    39   Atl.  N.  E.  Rep  854;  Pleas  v.  Thomas  (Miss.), 

Rep.  550  [1898].  22  So.  Rep.  820  [1897]. 

2  Meredith   v.    Frank  (Ohio),  47  N.  E.  6  Jones  on  Easements,  §298. 

Rep.  656  [1897].  7  Ritchey  v.  Welsh  (Ind.).  48  N.  E.  Rep. 

3Vossen    v.    Dautel    (Mo.),    22   S.    W.  1031  [1898];  Palmer  v.  Palmer,  150  N.  Y. 

Rep.  734;  Field  v.  Mark  (Mo.),  ^28  S.  W.  139. 

Rep.  1004;  Lankin  v.  Terwilliger  (Oreg.),  8  Kruegel    v.    Nitschmann    (Tex.    Civ. 

29  Pac.  Rep.  268.  App.),  40  S.  W.  Rep.  68. 

*Hildreth    v.    Googins    (Me.),    39  Atl.  9  Fritz    v.  Tompkins   (Sup.),  41  N.   Y. 

Rep.    550   [1898];    Kingsley   v.    Goulds-  Supp.  985. 

borough  Ld.  Imp.  Co.,  86  Me.  279.  10  Kruegel  v.    Nitschmann    (Tex.    Civ. 

6  Willey  v.  Thwing  (Vt.),  34  Atl.  Rep.  App.),  40  S.  W.  Rep.  68. 

428;  Boyd  v.  Woolwine  (W.  Va.),  21  S.  E.  u  Osborn  v.  Wise  (Eng.),  7  Cor.  &  P. 

Rep.  1020;  Miller  v.   Richards  (Ind.),  38  761. 


495  RIGHTS   OF    WAY  IN  GENERAL.  §  716. 

under  the  surface  even  where  an  underground  way  would  be  much  more 
convenient  for  the  grantee.1 

Where  a  party  sells  two  adjoining  tracts  of  land  and  one  can  have  access 
to  a  public  highway  only  by  passing  over  the  other  of  said  tracts,  it  creates  a 
right  of  way  of  necessity.2  If,  in  settlement  of  an  estate,  a  farm  was  conveyed 
to  one  heir,  excepting  a  small  piece  thereof,  which  was  at  the  same  time  con- 
veyed to  two  other  heirs  for  use  as  a  private  cemetery,  the  conveyance  carries 
with  it  by  necessity,  and  as  a  part  of  the  grant,  a  right  of  way  to  the  cemetery 
lot  over  the  remaining  part  of  the  farm.3 

A  right  of  way  by  necessity  over  the  land  of  another  ceases  when  the 
necessity  ceases,  and  where  there  is  another  way  than  the  one  in  question  it 
cannot  be  a  way  of  necessity;  yet  where  the  occupants  of  land  have  from  time 
out  of  mind  used  a  way  over  the  land  of  another,  under  a  claim  of  right,  as  a 
way  of  convenience  merely,  and  not  as  a  way  of  necessity,  their  use  of  the  way 
cannot  be  disturbed.4 

The  right  of  way  by  necessity  is  confined  to  the  grantor's  lands.  The  fact 
that  one's  land  is  completely  surrrounded  by  the  land  of  another  does  not  of 
itself  give  the  former  a  way  by  necessity  over  the  land  of  the  latter,  where 
there  is  no  unity  of  ownership. 5  However,  the  right  of  a  grantee  of  the  state 
to  a  way  by  necessity  has  been  held  not  to  extend  over  state  lands  which 
entirely  surround  the  grant.6 

A  right  of  way  will  be  limited  to  such  uses  as  were  contemplated  in  the 
grant  and  such  as  are  a  benefit  to  the  land  to  which  the  way  is  appurtenant. 
A  reservation  of  "  a  suitable  wagon  road  or  crossing ' '  under  a  tract  of  land 
granted  to  a  railroad  company  for  its  tracks,  "so  as  to  enable  grantor  to  travel 
and  cross  freely  between  his  land  on  each  side  of  the  granted  premises,"  does 
not  entitle  the  grantor's  privies  of  estate  to  lay  therein  oil-pipe  lines  for  the 
conveyance  of  petroleum,  since  that  is  no  benefit  to  the  lands  to  which  the 
way  is  appurtenant.7 

There  are  other  ways  of  necessity  or  privilege,  as  when  one's  property  has 
been  cast  upon  the  land  of  another  by  Providence  or  an  act  of  God.  In  some 
states  and  under  some  circumstances  rights  of  way  are  given  as  by  necessity 
as  right  of  ingress  and  egress  by  a  tenant  to  gather  and  market  crops  which  he 
has  planted  or  to  which  he  may  be  entitled.8 

716.  Change  of  Location  of  Right  of  Way, — An  owner  of  land  subject 
to  an  easement  of  way  cannot  without  the  consent  of  the  person  having  the 

^earne  v.  Coal  Creek  Min.  &  Manfg.       41  Atl.  Rep.  856  [1898]. 
Co.  (Tenn.),  18  S.  W.  Rep.  402.  6  Pearne  v.  Coal  Creek  Min.  &  Manfg. 

2  Rogerson  v.  Shepherd,  10  S.  E.  Rep.       Co.  (Tenn.),  18  S.  W.  Rep.  402. 

632.  7  United  States   Pipe-line  Co.  v.  Dela- 

3  Palmer  v.   Palmer,  150  N.  Y.  139,  44       ware,    L.   &  W.   R.   Co.  (N.  J.),  41  Atl. 
N.  E.  Rep.  966,  reversing  24  N.  Y.  Supp.        Rep.  759  [1898]. 

613.  8  Brown  v.  Leath  (Tex.),  42  S.  W.  Rep. 

4  Benedict  v.  Johnson  (Ky.),  42  S.  W.  655, — lessee  of  mortgagor  v.  a  purchaser 
Rep.  335  [1897].  at  foreclosure  sale. 

5  Ellis  v.  Blue  Mt.  Forest  Ass'n  (N.  H.), 


§  ?l6.          OPERATIONS   PRELIMINARY    TO    CONSTRUCTION.  496 

easement  change  the  location  of  the  way.  1  When  the  right  of  way  has  once 
been  established  it  is  not  extinguished  by  the  opening  of  another  way  by  the 
owner  unless  the  other  party  expressly  assents  to  such  change.2  The  course 
of  a  right  of  way  acquired  by  prescription  is  no  more  subject  to  variation  by 
parol  agreement  or  by  acts  and  conduct  than  if  created  by  deed. 3 

Where  the  owner  obstructs  the  right  of  way  and  opens  another  way 
instead,  which,  after  some  objection  by  the  owner  of  the  right  of  way,  is  at  last 
adopted  and  used  by  him,  only  nominal  damages  can  be  recovered  in  the 
absence  of  proof  of  actual  damage.4  Where  the  parties  execute  a  deed  for  the 
declared  purpose  of  changing  the  location  of  a  right  of  way,  such  indenture 
will  not  be  construed  as  abridging  or  enlarging  the  extent  of  the  easement 
originally  granted  unless  such  purpose  clearly  appears  from  the  whole 
instrument.5 

Under  the  Georgia  code,  one  who  has  had  a  private  right  of  way  over 
another's  land  for  two  years  and  another  right  of  way  for  five  years,  and  has 
at  the  owner's  request  abandoned  the  first  one,  he  cannot  tack  possession  of 
the  strips  so  as  to  claim  an  easement  for  seven  years  by  prescription. 6  A  pre- 
scriptive right  of  way  over  another's  land  cannot  be  acquired  without  showing 
a  defined  line  of  travel.7 

Where  a  right  of  way  has  been  used  and  occupied  under  a  contract  and 
license  given  to  the  selectmen  of  a  town  by  the  owner  of  land,  the  town 
cannot  acquire  a  right  of  way  by  prescription  over  the  land  even  though 
the  contract  was  not  authorized  by  the  town.  If  the  selectmen  represented 
that  they  had  authority  to  enter  into  the  agreement,  and  license  was  granted 
relying  upon  such  representation,  no  right  to  the  use  of  such  road  would  be 
acquired  until  the  owner  was  notified  that  the  town  was  not  using  the  right 
of  way  by  virtue  of  the  license;  provided,  however,  that  the  town's  use  of  the 
way  was  not  inconsistent  with  the  agreement,  and  that  the  owner  believed 
that  the  town  was  using  the  way  in  pursuance  of  the  agreement. 8 

A  grantee  of  a  way  of  definite  width  is  not  restricted  to  the  mere  right  of 
passage  over  the  natural  surface  of  the  land  within  the  boundaries  of  the  way, 
but  can  construct  over  the  entire  width  a  road  suitable  for  the  convenient 
enjoyment  of  the  grant.9  Where  all  the  owners  of  the  easement  of  a  way  of 
definite  width  have  constructed  through  the  middle  of  the  way  a  narrower 
road  of  an  agreed  grade,  material,  and  surface,  without  stipulating  that  such 
road  shall  not  thereafter  be  widened,  a  subsequent  widening  of  such  road  by 

1Many  v.  Port  Reading  R.  Co.  (N.  J.  6  Peters  -v.  Little  (Ga.),  22  S.  E.  Rep. 

Ch.),  33  Atl.  Rep.  802.  44;  Totel  v.  Bonneyfoy  (111.),  14  N.  E. 

a  Palmer  v.  Palmer,  150  N.  Y.  139.  Rep.  687  [1888]. 

'Nichols  v.  Peck  (Conn.),  39  Atl.  Rep.  7  Bushy  v.  Santiff  (Sup.),  33  N.  Y.  Supp. 

803  [1898].  473- 

4Fitzpatrick  v.  Boston  &  M.  R.  Co.,  84  s  Deerfield  v.  Conn.  R.  Co.  (Mass.),  n 

Me.  33.  N.  E.  Rep.  105  [1887]. 

5  Rotch  v.  Livingston  (Me.),  40  Atl.  9  Rotch  v.  Livingston  (Me.),  40  Atl. 

,  426  [1898].  Rep.  426  [1898]. 


497  RIGHTS   OF    WAY  IN  GENERAL. 

any  easement  owner  to  the  full  width  of  the  way,  with  the  same  grade, 
material,  etc.,  is  a  reasonable  exercise  of  his  right.1 

That  only  a  portion  of  a  street  which  has  been  dedicated  and  accepted  as 
a  public  street  is  opened  up  does  not  divest  or  impair  the  right  of  the  public 
to  open  and  use  the  remaining  parts  whenever  the  exigencies  of  public  travel 
and  wants  require  it.2  The  traveling  public  has  a  right  to  use  every  portion 
of  the  pavement,  and  to  presume  that  there  are  no  dangerous  impediments 
unprotected,  and  that  the  street  is  in  a  reasonably  safe  condition.3 

717.  Obstructing  a  Right  of  Way, — To  maintain  an  action  for  obstruct- 
ing a  way,  actual  damages  need  not  be  proven,  nor  is  it  necessary  to  prove 
that  the  plaintiff  wished  or  attempted  to  use  the  way  while  it  was  obstructed. 
Such  an  action  may  be  maintained  without  first  demanding  that  the  obstruc- 
tion be  removed.4 

In  Pennsylvania,  in  the  absence  of  special  damages  equity  will  not  inter- 
vene to  abate  a  nuisance  arising  from  the  obstruction  of  a  highway.5 

The  owner  of  the  servient  tenement  has  a  right  to  maintain  movable  bars 
or  a  swinging  gate  in  a  right  of  way  over  his  land  possessed  by  another  if  they 
do  not  unreasonably  interfere  with  the  enjoyment  of  the  easement.  The 
usual  and  necessary  inconvenience  involved  in  descending  from  a  wagon  and 
opening  a  gate  and  closing  it  after  driving  through  is  not  an  unreasonable 
obstruction  of  or  a  hindrance  to  the  free  use  of  a  right  of  way  over  land.6 

Where  a  right  of  way  had  been  created  and  described  as  'the  way  as  then 
established,  which  was  sixteen  feet  wide  and  had  been  used  for  a  long  time 
and  was  well  marked,  it  was  held  that  the  owner  of  the  servient  estate  could 
not  build  his  fences  inclosing  the  path  in  a  straight  line  so  as  to  change  the 
course  of  the  way.  Such  a  fence  was  held  to  be  an  obstruction  of  the  right 
of  way.7 

Though  an  owner  of  even  a  fractional  part  of  a  way  may  object  to 
a  partial  obstruction  thereof,  he.  is  not  entitled  to  relief  in  equity  where  it 
does  not  appear  that  such  obstruction  interfered  with  his  use  of  the  way.8 

Where  a  plaintiff  has  without  serious  objection  permitted  a  neighbor  to 
erect  a  building  which  encroaches  upon  his  easement  in  a  private  way  and  has 
for  nine  years  acquiesced  in  such  encroachment  together  with  other  parties 
interested,  a  court  may  properly  refuse  to  order  the  removal  of  a  portion  of 
the  building  to  remove  such  encroachment.9 

If  an  abutting  owner  set  a  post  on  the  edge  of  the  highway,  though  it  be 

1Rotchz/.  Livingston,  supra.  6Kohler  z/.  Smith,  3  Super.   Ct.  (Pa.) 

2  London  &  S.  F.  Bank  v.  Oakland  (C.  176,  39  W.  N.  C.  359. 

C.)f  86  Fed.  Rep.  30.  7  Calvert    v.    Weddle   (Ky.),  44  S.   W. 

'  Louth    v.    Thompson    (Del.),   39  Atl.  Rep.  648  [1898]. 

Rep.  noo  [1897].  8Bentleyz/.  Root(R.   I.),  32  Atl.   Rep. 

4  Collins  v.  St.  Peters  (Vt.),  27  Atl.  Rep.  918. 

425-  9  Green  v.  Richmond  (Mass.),  29  N.  E. 

6Phila.,  etc.,  R.  Co.  v.  Phila.,  etc.,  Ry.  Rep.    770;  Duer  v.    Doherty,   26    Pittsb. 

Co.,  6  Pa.  Dist.  Rep.  487.  Leg.  J.  (N.  S.)  104. 


OPERATIONS  PRELIMINARY   TO    CONSTRUCTION.  498 

put  there  to  protect  the  public  from  an  insecure  sewer  which  he  had  con- 
structed in  the  street  at  that  point,  he  is  liable  to  a  traveler  who  is  injured  by 
such  obstruction.1 

An  owner  of  land  abutting  upon  a  public  highway,  who  has  set  out  a 
hedge  and  shade-trees  which  encroach  some  five  feet  within  the  line  of  the  high- 
way, may  have  an  injunction  to  restrain  a  supervisor  of  roads  from  removing 
the  shade-trees  and  hedge  if  it  appear  that  they  do  not  obstruct  the  road  or 
prevent  its  necessary  improvement.2 

A  grantor  loses  the  right  of  way  he  has  reserved  over  land  in  common  with 
the  grantee  when  he  has  been  excluded  by  the  grantee  by  a  structure  of  a 
permanent  character  on  most  of  the  granted  premises  and  fencing  the  rest, 
this  being  acquiesced  in  by  the  grantor.3 

If  a  person  construct  a  ditch  across  a  public  highway,  he  is  bound  to 
restore  the  highway  at  his  own  expense,  and  to  keep  it  in  good  repair  whether 
the  ditch  cuts  the  highway  or  street  within  or  without  the  city  limits.  The 
building  of  a  culvert  by  an  authorized  officer  in  a  highway  which  is  traveled 
more  or  less  and  which  he  has  authority  to  work  is  sufficient  to  show  an 
acceptance  of  such  a  highway.4 

718.  Erection  of  Awnings,  etc,,  in  a  Street. — Frequently  in  cities  there 
are  ordinances  prohibiting  the  erection  of  awnings  and  other  constructions 
over  or  under  the  sidewalks  or  other  parts  of  the  street.  Such  ordinances  have 
been  held  valid  and  have  been  upheld  by  the  courts  even  to  the  extent  of  deny- 
ing a  contractor  who  has  erected  such  an  awning  the  right  to  recover  for  his 
la.bor  and  materials.5 

In  some  cities  the  erection  of  awnings  is  permitted  by  license  of  the  city 
council  or  board  of  aldermen;  and  if  an  awning  be  erected  without  such 
license  and  in  violation  of  the  ordinances  of  the  city,  the  fact  that  the  awning 
does  no  injury  will  not  prevail  if  the  awning  is  a  purpresture.6  A  city  council 
has  not  the  power  to  grant  any  part  of  a  street  to  any  person  for  a  private  use 
to  the  exclusion  of  the  public,  and  a  permanent  structure  for  a  private  use 
upon  the  street  is  a  nuisance.  Authority  to  a  person  to  erect  an  awning  in  a 
street  by  a  city  council  is  a  mere  license  which  may  be  revoked  at  any  time  by 
the  city.6 

Without  express  legislative  authority  a  city  has  not  the  right  or  power  to 
grant  a  right  to  erect  and  perpetually  maintain  awnings,  etc.,  over  the  side- 
walks and  the  streets,  and  no  lapse  of  time  will  render  the  license  to  erect 

1Gunther  v.   Draubauer,  38  All.  Rep.  Rep.  287. 

33.  5  Wait's  Engin.  and  Arch    Jurisp.,  §  76; 

2Crismon     v.    Deck    (la.),     51    N.    W.  Hibbard  v.  Chicago  (111.),  5o  N.  E.   Rep. 

Rep.  55-  256. 

3  Botsford  v.  Wallace  (Conn.),  37  Atl.  6  Hibbard  v.  Chicago,  supra. 
Rep.  902. 

*Devoe    v.    Smeltzer   (la.),    53   N.   W. 


499  RIGHTS   OF   WAY  IN  GENERAL.  §  721. 

such  awnings  irrevocable.1  A  Delaware  case  held  that  abutting  property 
owners  have  a  right  to  place  upon  the  streets  of  a  city  doorsteps,  stepping- 
stones,  hitching-posts,  and  awning-posts,  which  every  one  is  bound  to  take 
notice  of  at  his  peril.2 

719.  Easement  of  Drain  over  or  through  Land. — A  water-pipe  leading 
from  a  driven  well  in  the  yard  to  a  sink  in  the  kitchen  and  ending  in  a  pump, 
by  which  water  is  habitually  drawn  for  domestic  purposes,  the  well  and  pipe 
being  completely  hidden  from  view,  forms  an  apparent  and  continuous  ease- 
ment which  passes  with  the  dwelling  when  it  alone  is  conveyed  by  the  owner 
of  both  the  yard  and  the  house.3     A  reservation  by  the  grantor,  his  heirs  or 
assigns,  of  the  right  to  use  a  certain  drain  across  the  premises  creates  an 
easement  of  drainage  over  the  land  conveyed,  which  is  not  nullified  because 
the  drain  in  fact  ends  in  a  cesspool  on  the  land.4 

When  a  drain  is  enlarged  by  joint  expense  of  the  dominant  and  servient 
estate,  this  act  does  not  so  destroy  its  identity  as  to  destroy  the  easement.5 

One  who  owns  land  subject  to  a  right  of  way  over  a  part  thereof  may  plow 
that  part  of  the  land  over  which  the  right  of  way  is  located  if  by  so  doing  he 
does  not  interfere  with  the  use  of  the  right  of  way.6 

A  parol  agreement  that  a  party  may  erect  a  dam  upon  the  lands  of  another, 
not  for  temporary  but  for  permanent  purposes,  as  for  water-power  for  the  use 
of  mills  and  other  hydraulic  works,  is  void,  being  within  the  statute  of  frauds.7 

720.  Bridges  a  Part  of  Highway. — Public  bridges  are  usually  held  to  be 
a  part  of  the  highway.    The  terms  are  not  convertible;  therefore  an  indictment 
for  neglect  to  repair  a  bridge  must  be  by  the  term  "  bridge  "  and  not  "  high- 
way."    A  bridge  over  a  stream  crossing  a  city  street  is  a  part  of  the  street.8 

A  bridge  constructed  by  a  private  corporation  whose  charter  authorizes  it 
to  build  and  maintain  a  toll-bridge  and  approaches  thereto  for  public  travel 
and  accommodation  is,  from  the  time  it  is  open  to  the  public,  a  portion  of  the 
highway,  subject  only  to  a  right  to  take  tolls  for  its  use.9 

The  approaches  to  a  bridge  built  by  a  board  of  chosen  freeholders  for  the 
purpose  of  continuing  a  highway  across  a  stream,  if  built  within  the  lines  of 
the  highway,  is  a  part  of  the  highway. 10 

721.  When    Occupation    of  Public   Ways   may  be   Authorized. — City 
authorities  have  no  right  or  power  to  give  public  property  to  a  private  person 
to  inclose  and  occupy  as  his  own.     An  interesting  case  arose  in  the  city  of 

1  Augusta   v.    Burum   (Ga.),    19   S.   E.  Rep.  437. 

Rep.  820.     See  Fields/.   Barling  (III.),  37  6  Moffitt    v.    Lytle  (Pa.  Sup.),    30   Atl. 

N.  E.  Rep.  850.  Rep.  922. 

2Louth    v.    Thompson   (Del.),    39  Atl.  7Mumford    v.   Whitney,   13  Wend.  380 

Rep.  noo  [1897].  [1836]. 

3  Larsen    v.    Peterson   (N.    J.    Ch.),  30  8  Chicago  v.  Powers,  Adm'r.,  42  111.  169. 
Atl.  Rep.  1094;  Weber  v.  Miller,  9  Ohio  9  Pittsburg,    etc.,    Ry.    Co.    v.    Point 
Cir.  Ct.  Rep.  674.  Bridge  Co.  (Pa.),  30  Atl.   Rep.  511. 

4  Jones    v.   Adams   (Mass.),    38    N.    E.  10  Willets  Mfg.  Co.  v.  Board  (N.  J.),  40 
Rep.  437.  Atl.  Rep.  782. 

5  Jones   v.    Adams    (Mass.),    38    N.   E. 


§721.  OPERATIONS   PRELIMINARY    TO    CONSTRUCTION.  5<X> 

Troy,  N.  Y.,  where  the  common  council  passed  a  resolution  the  effect  of 
which  was  that  H.  Street  in  that  city  was  reduced  to  a  width  of  forty  feet  by 
taking  a  strip  from  the  east  side  of  the  street  and  by  giving  the  owner  of  the 
adjoining  premises  permission  to  inclose  this  strip  within  his  grounds.  This 
strip  was  inclosed  by  a  permanent  wall  in  1853  and  so  remained  until  1874, 
when  the  city  authorities,  under  resolution  of  the  common  council,  revoked 
the  former  resolution  and  directed  the  opening  of  the  street  to  its  original 
width.  The  courts  held  that  the  common  council  had  no  authority  to  give 
the  adjoining  owner  permission  to  inclose  a  part  of  the  street  for  his  private 
use,  and  that  it  could  not  transfer  any  title  or  extinguish  the  public  easement 
in  the  part  of  the  street  so  inclosed.  It  was  also  held  that  the  easement  of 
^he  public  in  the  street  had  not  been  extinguished  by  adverse  possession, 
because  the  adjoining  owner  had  held  it  under  a  license  and  his  holding  was 
not,  therefore,  within  the  statute  of  limitations;  and  this  was  so  held  even 
though  the  license  was  invalid.  Furthermore,  it  was  held  that  such  an 
encroachment  upon  a  public  highway  could  not  destroy  the  public  right  or 
take  away  the  authority  of  the  public  officers  to  remove  it.1 

Municipal  authorities  have  no  power  to  grant  the  use  of  a  public  highway 
for  the  erection  of  private  scales,  such  purpose  not  being  a  public  purpose.2 
A  building  permit,  issued  by  municipal  authority,  which  authorizes  the  occu- 
pation of  a  part  of  a  public  street  as  a  depository  for  building  materials,  and 
requires  that  proper  lights  be  placed  at  night  to  indicate  their  location,  does 
not  relieve  the  city  from  the  duty  of  exercising  a  reasonable  diligence  to 
prevent  the  holders  of  such  a  permit  from  occupying  the  street  in  such  a  way 
as  to  endanger  passers-by  in  their  proper  use  of  such  street.3 

Acts  done  in  the  proper  exercise  of  governmental  powers  and  not  directly 
encroaching  upon  private  property,  although  their  consequences  may  impair 
its  use,  are  not  a  taking  within  the  meaning  of  the  constitutional  provision 
which  forbids  the  taking  of  such  property  for  public  use  without  just  com- 
pensation therefor.4 

The  construction  of  a  bridge  on  one  side  of  a  street  over  a  railroad  cross- 
ing, and  the  erection  of  a  wall  on  the  remaining  street  and  sidewalk  to 
prevent  a  crossing  at  grade,  do  not  constitute  a  taking  of  private  property  for 
public  use  so  as  to  entitle  the  owner  of  property  abutting  on  such  street  out- 
side of,  but  next  to,  the  wall  to  recover  for  damages  caused  thereby.5 

A  municipal  corporation  authorized  by  law  to  improve  a  street  by 
building  on  the  line  thereof  a  bridge  over,  or  a  tunnel  under,  a  navigable 
river  incurs  no  liability  for  the  damages  unavoidably  caused  to  adjoining 

1  St.  Vincent  Asylum  v.  Troy,  76  N.  Y.       635  [1878].     This  was  a  case  of  a  struc- 
in.  ture  occupying  a  street  and  interfering 

2  Berry-Horn  Coal  Co.  v.  Scruggs-Mc-       with  its  use. 

Clure  Coal  Co.,  62  Mo.  App.  93.  5  Talbot  v.  New  York  &  H.  R.  Co.,  151 

'Cleveland  v.  King,  132  U.  S.  295.  N.  Y.  155,  45  N.  E.  Rep.  382. 

4  Transportion  Co.  v.  Chicago,  99  U.  S. 


501  RIGHTS    OF   WAY  IN  GENERAL.  §  7 21. 

property  by  obstructing  the  street  or  the  river,  unless  such  liability  be  imposed 
by  statute.  If  the  fee  of  the  street  is  in  the  adjoining  lot-owners,  the  state 
has  an  easement  to  adapt  the  street  to  easy  and  safe  passage  over  its  entire 
length  and  breadth.  When  making  or  improving  the  streets  within  its  limits, 
in  the  exercise  of  an  authority  conferred  by  statute,  a  city  is  the  agent  of  the 
state,  and  if  it  acts  within  that  authority,  and  with  due  care,  despatch,  and 
skill,  is  not  at  common  law  answerable  for  consequential  damages.  That 
which  the  law  authorizes  cannot  be  a  nuisance  such  as  to  give  a  common-law 
right  of  action.1 

Under  the  laws  of  some  states,  subject  to  proper  control  and  police  regu- 
lation, a  railway  company  may  occupy  and  pass  over  a  street  of  a  city  without 
the  consent  of  the  city  authorities.2  * 

As  the  title  of  one  owning  land  bounded  upon  a  stream  not  navigable  ex- 
tends, under  the  common  law,  to  the  center  of  the  stream,  and  as  the  state  can 
not  take  or  damage  such  owner's  property  so  situated  without  compensation,  it 
follows  that  the  state  cannot  grant  a  charter  to  a  railroad  company  to  do  the 
same  thing.  Therefore  if  such  a  company,  under  its  charter,  erects  a  bridge 
across  such  a  stream,  and  the  property  of  another  bounded  by  the  stream  is 
either  taken  or  damaged  thereby,  a  right  of  action  exists  in  his  favor;  but  such 
party  can  only  recover  for  damages  which -are  special  to  his  property  and  not 
for  such  as  are  identical  to  and  shared  by  the  public  at  large.3  Where  the 
erection  of  a  railroad  bridge  across  a  river  in  a  city  causes  a  permanent  injury 
or  depreciation  in  the  value  of  a  lot  in  the  immediate  vicinity  which  is  used 
for  dock  purposes,  such  injury  is  a  proper  element  of  damages  in  a  suit  by  the 
owner  against  the  company,  and  it  is  proper  to  allow  the  lot-owner  to  show 
such  damages  by  proving  the  value  of  his  property  before  the  erection  of  the 
bridge  and  its  value  after,  or,  in  other  words,  to  prove  how  much  less  the 
property  would  sell  for  in  consequence  of  the  building  of  the  bridge.3 

The  measure  of  damages  to  abutting  property  caused  by  the  construction 
of  a  railroad  in  a  public  street  is  the  depreciation  of  the  market  value  of  the 
property. 4  • 

Where  railroad  companies  which  had  rightfully  maintained  a  railroad  in 
a  street  in  front  of  plaintiff's  premises  were,  in  consequence  of  certain  river 
improvements,  required  by  act  of  Congress  to  replace  their  bridge  over  said 
river  by  a  higher  bridge,  thus  necessitating  building  an  elevated  railway  struc- 
ture in  front  of  plaintiff's  premises,  which  was  provided  for  by  state  legislation 
placing  the  matter  under  the  supervision  of  certain  public  authorities,  it  was 
held  that  the  companies  were  liable  to  make  compensation  for  injuries 

1  Transportation  Co.  v.  Chicago,  99  U.  'Chicago  &  P.  R.  Co.  v.  Stein,  75  111. 
S.  635  [1878].  41  [1874]- 

2  State  v.   Davenport,  etc.,  R.  Co.,  47  *  Stewart  v.  Ohio  River  R.  Co.  (W.  Va.), 
Iowa  507  [1877].  18  S.  E.  Rep.  604. 

*  See  Sees.  756-770,  infra. 


§721.         OPERATIONS  PRELIMINARY   TO    CONSTRUCTION.  $02 

inflicted  on  plaintiff's  property  by  reason  of  these  changes  in  so  far  as  they 
involved  an  inconsistent  and  excessive  street  use  over  and  above  the  user  which 
the  companies  had  theretofore  had  in  the  street. 1  Where  work  is  done  by  a 
railroad  company  in  a  street  under  authority  from  the  city,  the  company  and 
not  the  city  is  liable  to  lot-owners  for  injuries  to  their  lots,  and  the  fact  that 
city  officers  supervised  the  work  is  immaterial.2 

One  who  has  a  perpetual  easement  in  one-half  of  an  alley  for  the  use  of 
its  surface  and  the  light  and  air  above,  and  owns  the  title  to  the  other  half, 
is  entitled  to  compensation  from  a  railway  company  that  has  built  its  elevated 
tracks  over  and  placed  the  pillars  on  the  half  of  the  alley,  and  projected  the 
superstructure  over  the  entire  portion  of  such  half  and  a  portion  of  the  other 
half.  Such  construction  constitutes  a  taking  of  property  to  the  extent  of  the 
projection.3 

Where  a  complaint  alleged  that  plaintiff  owned  the  fee  in  certain  land, 
subject  to  an  easement  for  street  purposes;  that,  without  his  consent,  one  of 
the  defendants  had  built,  and  both  were  maintaining,  a  bridge  and  railroad 
thereon,  and  just  north  of  other  land  owned  by  plaintiff  adjoining  thereto; 
that  by  so  doing  defendants  were  guilty  of  continuous  trespass  on  plaintiff's 
land;  that  to  recover  therefor  would  require  a  multiplicity  of  suits,  and  that 
plaintiff  had  no  adequate  remedy  at  law,  it  was  held  that  the  complaint  stated 
facts  authorizing  an  injunction.4 

In  New  Jersey  it  has  been  held  that  where  an  abutting  owner  owns  the  soil 
in  the  street  upon  which  his  house  is  built  he  is  entitled  to  bring  an  action 
against  a  railroad  company  for  building  a  depot  in  the  street  in  front  of  his 
land,  and  that  suit  should  be  brought  in  his  own  name;  that  the  fact  of  his 
owning  lands  bounded  upon  the  street  raises  a  presumption  that  he  owns  the 
fee  to  the  center  of  the  street;  and  that  while  an  individual  cannot  maintain 
a  suit  to  restrain  a  nuisance  where  he  is  injured  only  in  such  rights  as  are 
enjoyed  by  him  as  one  of  the  public,  even  though  he  is  inconvenienced  more 
than  other  individual  members  of  the  community  by  the  nuisance,  yet  in  such 
a  case  he  can  bring  suit  in  his  own  name  without  'an  information  being  filed 
for  the  public  in  the  name  of  the  attorney-general  on  behalf  of  the  state.5 

^alazar  v.  New  York  &  H.  R.  Co.  (N.  Springer,  171  111.  170  [1897]. 
Y.  Sup.),  49  N.  Y.  Supp.  1065  [1897].  4Coatsworth  v.  Lehigh  Val.  Ry.  Co.,  48 

2  Jordan  z/.  City  of  Benwood  (W.  Va.),  N.  Y.  Supp.  511. 
26  S.  E.  Rep.  266.  5Higbee  v.  Camden,  etc.,  Co.,  19  N.  J. 

8  Metropolitan    W.    S.    El.    R.    Co.    v.  Eq.  276  [1868]. 


CHAPTER  XXXVII. 
/ 

RIGHT  OF   WAY   OF   RAILROAD. 

731.  Character  of  Railroad  Right  of  Way. — A  right  of  way  is  a  right 
held  by  a  railroad  company  for  railroad  purposes  in  the  land  over  which  its 
road  is  built.  It  sometimes  denotes  the  land  itself.  The  rights  which  a  rail- 
road may  have  in  the  land  over  which  its  right  of  way  passes  depend  upon  the 
manner  in  which  the  right  of  way  was  acquired,  whether  by  purchase,  or  by 
grant,  or  by  the  exercise  of  the  power  of  eminent  domain.  If  acquired  by 
purchase  or  grant,  they  will  be  determined  by  the  terms  of  the  deed;  if  by 
eminent  domain  (unless  specially  provided  for  otherwise  by  statute),  the  road 
has  only  an  easement,  the  fee  remaining  in  the  original  landowner. 

The  property  which  a  railroad  takes  in  its  right  of  way  is  usually  deter- 
mined by  the  charter  or  legislative  act  giving  it  the  power  of  eminent  domain.1 
It  is  competent  for  the  state  to  appropriate  the  fee  for  the  use  of  a  railroad 
upon  payment  of  proper  compensation.  The  legislature  is  the  sole  judge  as 
to  what  extent  the  owner's  title  should  be  extinguished  for  the  public  use. 
The  constitution  of  the  state  of  Illinois  forbids  the  condemnation  of  lands  for 
railroad  right  of  way  except  to  the  extent  of  an  easement.  If  not  specified 
in  the  grant  or  deed,  the  interest  in  a  railroad  right  of  way  is  the  same  whether 
granted  or  condemned.1  It  is  usually  an  easement  in  the  land  of  others.  As 
such  it  is  an  incumbrance  upon  land  and  may  constitute  a  breach  of  covenant 
against  incumbrances  contained  in  the  deed.  The  covenant  is  not  released 
by  knowledge  of  both  parties  of  the  easement  of  a  railroad  company.2  When 
the  charter  provides  that  the  company  shall  be  seized  and  possessed  of  the 
land,  etc.,  it  gives  only  the  Tight  of  way,  a  power  to  acquire  lands  for  its  own 
corporate  purposes,  and  gives  only  such  an  estate  as  is  necessary  for  the  uses 
of  the  railroad ;  and  in  general  a  railroad  company  has  no  authority  whatever 
to  use  its  right  of  way  acquired  by  condemnation  proceedings  for  any  other 
purpose  than  that  connected  with  the  proper  construction,  maintenance,  and 
operation  of  its  road.3  It  has  been  held,  therefore,  that  a  road  has  no  right 
to  take  ice  from  a  pond  on  its  way; 4  nor  to  cut  the  grass  growing  thereon; 

1  Smith  v.    Hall   (la.),    72  N.    W.   Rep.       cases  cited. 

427  [1897].  3  19  Amer.  &  Eng.  Ency.  Law  840. 

2 19  Amer.  &  Eng.  Ency.  Law  839,  and          4  Julien  v.  Woodsmall,  82  Ind.  568. 

503 


§  73 2-          OPERATIONS  PRELIMINARY    TO   CONSTRUCTION.  $04 

nor  to  take  sand  for  building  a  round-house; 1  nor  to  sell  materials  removed 
while  grading  the  road,  though  it  may  sell  the  road  itself; 2  nor  to  build  struc- 
tures, machinery,  etc.,  upon  its  way  which  are  not  necessary  to  the  exercise 
of  the  franchise.3  However,  the  occupancy  of  a  right  of  way  by  a  railroad  is 
practically  exclusive,  and  the  owner  of  the  servient  estate  can  cultivate  it  only 
by  the  company's  consent.4 

Grants  and  charters  of  railroad  companies  are  in  the  nature  of  public 
franchises,  and  are  for  the  public  weal,  and  will  receive  a  reasonable  interpre- 
tation, due  regard  being  had  to  the  magnitude,  character,  and  general  public 
utility  of  the  enterprise. 

The  term  "right  of  way"  has  been  held  to  embrace  the  land  used  as  a 
way  for  the  road,  and  not  such  other  grants  as  might  be  used  for  the  con- 
venience of  the  railroad,  but  not  as  a  part  of  its  way.5  It  usually  includes 
lands  required  for  necessary  side-tracks  and  turn-outs,  and  the  improvements 
thereon.6  It  is  sometimes  used  to  designate  a  mere  right  of  crossing,  but  in 
its  application  to  a  railroad  company  it  is  used  to  describe  a  strip  of  land 
which  the  company  appropriates  for  its  roadbed.7 

A  right  of  way  for  all  purposes  connected  with  the  construction,  use,  and 
occupation  of  a  railway  has  been  held  not  to  give  the  right  to  take  sand  from 
the  way  for  use  in  building  a  round-house.8 

A  railroad  bridge  becomes  a  part  of  the  permanent  structure  of  a  railroad, 
so  much  so  that  a  mechanic's  lien  cannot  be  maintained  for  work  performed 
and  material  furnished  fora  bridge,  as  against  liens  created  by  prior  mortgages 
on  the  railroad.9 

732.  Right  of  Way — How  Acquired. — A  legal  right  of  way  may  be 
acquired  in  three  ways:  (i)  by  deed  or  patent;  (2)  by  condemnation  proceed- 
ings and  payment  of  damages;  (3)  by  prescription.*  If  a  railroad  company 
enters  upon  land  over  which  it  has  not  acquired  a  right  of  way,  it  is  a 
trespasser,  and  an  action  of  ejectment  or  a  suit  for  damages  may  be  main- 
tained. The  fact  that  a  railroad  company  was  permitted  to  enter  and  build 
its  road  does  not  give  it  a  right  of  way  by  estoppel.  The  owner  may  maintain 
an  action  for  damages,  though  he  might  be  prevented  from  maintaining  an 
action  of  ejectment.  When  a  company  has  secured  the  fee  in  the  lands  over 
which  its  road  is  built,  it  has  all  the  property  rights  of  a  natural  person,  and 
therefore  an  exclusive  right  to  its  possession  and  enjoyment.  In  such  case 

1  Vermilye  v.  Chicago,  etc.,  R.  Co.,  66  N.  W.  Rep.  550. 

la.  606.  6  Pfaff  v.  Terre  Haute,  etc.,  R.  Co.,  106 

2Aldrich  v.  Drury,  8  R.  I.  554.  Ind.  144. 

3  Lance's  Appeal,  55  Pa.  St.  16.  7  Keener  z/.  Union  Pac.  R.  Co.,  31  Fed. 

4  Paxton    v.    Yazoo   &    M.    V.    R.    Co.  Rep.  128. 

(Miss.),  24  So.  Rep.  536  [1899].  8  Vermilye  v.  Chicago,  etc.,  R.  Co.,  66 

5  Chicago  Railroad  Co.   v.  Paddock,  75       la.  606. 

111.  616;  Mercantile  Trust  Co.  v.  Atlantic  9Cleveland  C.  &  S.  Ry.  Co.  v.  Knicker- 

&  Pac.  R.  Co.  (C.  C.),  63  Fed.  Rep.  910.  bocker  Trust  Co.  of  New  York,  86  Fed. 
See  Pinkum  v.  Eau  Claire  (Wis.),  51  Rep.  73. 

*  See  Sec.  685,  supra. 


$05  RIGHT   OF    WA  Y   OF  RAILROAD.  §  733. 

neither  the  original  owner  nor  the  public  authorities  have  any  right  to  build 
below  or  above  the  railroad,  as  when  it  runs  through  a  tunnel.1  Having 
acquired  the  fee  the  company  may  alienate  the  title.  It  may  build  upon  the 
land  even  though  there  are  statutes  prohibiting  buildings  on  the  right  of  way. 
In  short,  the  company  enjoys  the  same  right  to  exclusive  possession  as  an 
individual  who  owns  the  fee.  If  the  right  of  way  obtained  by  purchase  or 
otherwise  be  defective,  and  if  the  road  be  built  and  in  operation,  the  act  of 
building  and  operating  does  not  prevent  title  by  condemnation  proceedings. a 

A  deed  which  conveys  "  the  right  of  way  for  a  railroad,  .  .  .  and  described 
as  follows:  '  A  strip  of  land  forty  feet  wide,  .  .  .  and  being  nine  hundred  and 
fifty-two  feet  in  length/  "  though  in  the  usual  form  of  a  full  warranty  deed, 
conveys  an  easement  only,  and  not  a  fee.3  A  deed  of  railroad  land  "reserv- 
ing and  excepting  "  a  strip  four  hundred  feet  wide,  to  be  used  for  a  right  of 
way  or  other  railroad  purposes,  in  case  the  line  of  said  road,  or  any  of  its 
branches  shall  be  located  on  or  over  the  same,  does  not  operate  as  an  excep- 
tion of  the  strip  from  the  grant,  but  merely  as  a  reservation  of  a  right  of  way 
or  easement  in  the  land,  and  the  title  to  the  whole  tract  vests  in  the  grantee 
by  virtue  of  the  deed.4 

The  ownership  of  a  right  of  way  is  in  the  railroad  company  and  not  in  the 
owner  of  all  its  stocks  and  bonds.  The  latter  may  not  maintain  an  action  in 
relation  to  the  right  of  way.5  A  corporation  created  only  for  a  limited  time 
may  acquire  the  fee  for  its  right  of  way. 

733.  Right  of  Way  Secured  by  Purchase. — A  railroad  company  may 
acquire  its  right  of  way  by  other  means  than  by  the  assistance  of  the  govern- 
ment. It  may  by  purchase  from  the  landowner  acquire  all  the  rights  neces- 
sary to  its  operation.  In  some  states  the  refusal  of  a  landowner  to  sell  for  a 
reasonable  price  is  a  necessary  condition  precedent  to  condemnation  proceed- 
ings. In  some  states  foreign  railroads  will  not  be  permitted  to  acquire  a  right 
of  way  either  by  condemnation  or  by  purchase.6 

The  power  to  purchase  land  necessary  to  carry  out  the  objects  of  a 
corporation  is  always  considered  to  be  authorized  unless  such  powers  are 
specially  restrained  by  the  charter  or  by  statutory  law.  A  right  secured  by 
purchase  carries  with  it  the  same  rights,  privileges,  and  exemptions  which 
attach  when  the  right  of  way  is  secured  by  eminent  domain. 

Generally,  all  the  obligations,  duties,  rights,  and  privileges  which  are 
incident  to  the  right  of  way  obtained  by  condemnation  proceedings  are 
acquired  by  a  railroad  company  when  it  purchases  its  right  of  way  and  takes 
a  deed  therefor.  The  same  obligations  exist  as  to  fencing  the  line  and  as  to 

1  Junction    R.    Co.    z>,    Boyd,     8  Phila.  *  Biles  v.  Tacoma,  O.  &  G.   H.   R.  Co. 
(Pa.)  224.     And  see  Kellogg  v.  Malin,  50       (Wash.),  32  Pac.  Rep.  211. 

Mo.. 496.  5 Fitzgerald  v.  Mo.  &  Pac.   R.  Co.,  35 

2  19  Amer.  &  Eng.  Ency.  Law  844,845.  Fed.  Rep.  812. 

3  Jones  v.  Van   Bochove  (Mich.),  61  N.  6  iq  Amer.  &  Eng.  Ency.  Law  842. 
W.  Rep.  342. 


§735-  OPERATIONS  PRELIMINARY    TO    CONSTRUCTION.  506 

the  construction  of  its  road  and  the  necessary  culverts,  embankments,  etc., 
and  liability  for  damages  due  to  negligent  construction.  Also  the  same 
privileges  exist,  such  as  the  right  to  cast  smoke,  cinders,  etc.,  upon  other  parts 
of  the  way,  the  removal  of  timber  and  -other  obstructions,  the  right  to  lay 
side-tracks,  and  all  other  rights  which  by  implication  are  necessary  to  the 
enjoyment  of  the  right  of  way.1 

734.  Grantor  of  Right  of  Way. — If  one  convey  a  right  of  way,  he  should 
be  the  owner  of  a  fee.      A  mere  equitable  owner  of  an  undivided  interest  in  a. 
possible  reversion,  or  the  holder  of  a   contingent  interest,  has  no  power  t^ 
create  a  right  of  way.      Attempts  by  the  husband  to  grant  rights  of  way  with- 
out the  co-operation  of  the  wife,  and  vice  versa,  and  where  there  are  dower  and 
homestead  interests,  require  care  and  advice  in  regard  to  the  law  in  the  >i«,u 
or  jurisdiction  in  which  the  conveyance  is  undertaken.      Without  doubt,  if  it 
may  be  done,  a  husband  or  wife  should  join  one  with  the  other  in  executing 
such  deeds  for  right  of  way.      It  has  been  held  that  a  life-tenant  can  grant  a 
right  of  way  during  his  life.      A  tenant  for  a  term  of  years  is  the  owner  of  the 
leased  premises  during  the   time  of  his  tenancy.      If  a  railroad  company  enter 
upon  leased  premises  under  authority  from  the  landowner,  it  is  a  trespass,  and 
he  is  liable  to  the  tenants  for  damage  to  his  rights,  crops,  etc. 

735.  Right  of  Way  on  Condition. — Rights  of  way  are  frequently  granted 
upon  a  condition  that   certain  things  shall  be  done  either  precedent  or  subse- 
quent to  the   conveyance.      In  such  cases,  if  the  conveyance  be  subject  to  a 
condition  precedent,    as  that    certain  structures   shall    be  erected  or  certain 
improvements   made,    the  title   to   the   land  may  be   defeated   by  failure  to 
comply  with  such  conditions.2      If,  however,  the  conditions  named  be  illegal, 
a  reconveyance  of  the  premises  will  not  be  decreed  on  account  of  a  violation  of 
them.    Whether  a  condition  is  precedent  or  subsequent  to  a  vesting  of  title  will 
depend  upon  the  intention  of  the  parties,  and  that  intention  is  to  be  gathered 
from  the  terms  of  the  conveyance  and  the  nature  of  the  whole  transaction. 

If  the  performance  of  a  condition  does  not  necessarily  precede  the  vesting 
of  the  estate,  but  may  accompany  or  follow  it,  the  condition  will  be  considered 
as  subsequent.  The  law  favors  conditions  subsequent  rather  than  precedent 
in  all  cases  of  doubt.  For  that  reason,  if  a  condition  may  be  either  a  condi- 
tion subsequent  or  a  covenant,  it  will  be  treated  as  a  covenant,  and  whether 
or  not  a  covenant  runs  with  the  land  will  depend  upon  its  character  and  upon 
well-known  rules.  Very  frequent  covenants  in  deeds  of  right  of  way  for  a 
railroad  are  those  concerning  the  location  and  erection  of  depots,  build- 
ings, fences,  cattle-guards,  and  other  structures.  Such  stipulations,  in  the 
absence  of  a  clear  and  express  condition,  are  construed  as  mere  covenants  for 
a  breach  of  which  the  grantor  may  have  a  remedy  in  damages  or  a  suit  in 
equity  for  specific  performance.3 

1  19  Amer.  &  Eng.  Ency.  Law  842,  843.  s  19  Amer.  &  Eng.  Ency.  Law  851. 

2  19  Amer.  &  Eng.  Ency.  Law  847,  848. 


5O7  RIGHT   OF    WAY   OF  RAILROAD.  §735- 

Where  a  right  of  way  was  given,  but  on  condition  that  a  depot  be  located 
at  a  certain  point,  an  action  for  damages  for  the  appropriation  of  land  under 
false  pretences  may  be  sustained  when  the  depot  and  road  have  not  been 
located  as  agreed.1  A  covenant  to  build  a  side-track  was  held  to  have  been 
performed  by  the  construction  of  a  double  main  track.2 

If  the  condition  precedent  of  a  deed  transferring  a  right  of  way  be  not  per- 
formed, the  estate  does  not  vest  if  the  deed  was  placed  in  escrow  to  be  delivered 
when  a  depot  should  have  been  erected  at  a  point  designated,  and  if  the  depot 
is  not  erected  until  a  long  time  afterwards,  and  then  by  another  company. 
The  first  company  to  whom  the  deed  was  made  out  acquires  no  title  to  the 
land  either  by  deed  or  by  adverse  possession.3 

If  a  condition  subsequent  be  broken,  the  grantor  or  his  heirs  may  enter 
and  maintain  ejectment  against  the  company,  or  he  may  maintain  an  action 
for  damages  or  a  suit  to  obtain  specific  performance.  The  right  of  re-entry 
belongs  only  to  the  grantor  or  his  heirs,  and  not  to  his  assignees.4  The 
grantor  may  avail  himself  of  the  failure  of  the  company  to  perform  conditions 
in  a  seasonable  time,  but  if  he  allow  the  company  to  continue  to  make 
improvements  and  expenditures  permanent  in  character  without  protest  or 
objection,  he  may  be  estopped  from  taking  advantage  of  such  failure.5  Thus 
where  a  deed  of  a  right  of  way  was  given  on  condition  that  the  company 
should,  within  a  given  time  after  completing  the  road,  construct  fences  and 
cattle-guards,  which  condition  was  not  performed,  and  where  the  grantor  did 
not  object  when  the  company  made  extensive  and  permanent  improvements 
on  the  land,  it  was  held  that  he  was  estopped  from  maintaining  an  action  of 
ejectment  after  having  permitted  the  improvements  to  be  made,  though  he 
might  have  insisted  upon  the  payment  of  damages  as  a  condition  precedent  to 
the  building  of  the  road.6 

If  a  landowner  permit  a  railroad  company  to  construct  its  road  under  an 
understanding  or  contract  for  future  payment  therefor,  he  may  not  rraintain 
either  ejectment  or  trespass  against  the  company  after  the  road  is  built  and 
put  in  operation,  though  the  price  has  not  been  paid.7 

Upon  the  facts  shown,  these  cases  would  be  unfair  to  the  landowner. 
In  the  former  case  cited,  the  railroad  company  was  not  to  build  fences  and 
cattle-guards  until  after  the  road  was  built,  and  therefore  a  breach  of  the 
undertaking  could  not  be  claimed  until  after  the  improvements  had  been 
made.  In  either  case  the  landowner  should  have  damages,  if  he  could  not 
maintain  an  action  of  ejectment,  unless  he  was  guilty  of  such  laches  as  would 

1  Hubbard  z/.  Kansas  City,  etc.,  Co.,  63  Rapids,  etc.,  R.  Co.,  25  la.  371;  Goodin  v. 

Mo.  68.  Cine.,  etc.,  C.  Co.,  18  Ohio  St.  169;  Wash- 

3  Purington  v.  Northern  111.   R.  Co.,  46  burn  on  Real  Property  (4th  ed.)  21. 

111.  297.  6 Baker  v.  Chicago,  etc.,  R.  Co.,  57  Mo. 

3  Sioux  City  Co.  v.  Wilson.  50  la.  422.  265. 

4  19  Amer.  &  Eng.  Ency.  Law  852.  7  McAulay  v.  Western  Vt.  R.  Co.,  33  Vt. 
6  Ludlow  v.  New  York,  etc.,  R.  Co.,  12  311. 

Barb.    (N.    Y.)    440;    Taylor    v.    Cedar 


§736-          OPERATIONS  PRELIMINARY    TO    CONSTRUCTION.  $O8 

make  it  unreasonable  for  him  to  recover.  If  the  grant  of  a  right  of  way  be 
absolute,  it  will  not  be  defeated  by  a  failure  to  comply  with  certain  covenants 
which  form  the  consideration  on  which  the  grant  was  obtained,  if  no  fault  be 
charged.  A  grant  in  consideration  of  one  dollar  and  the  further  consideration 
that  the  company  will  locate  its  road  on  the  grantor's  land  was  held  not  to 
be  a  condition,  but  only  a  contract.1 

Where  a  railroad  company  succeeds  to  the  right  of  another  person  or  cor- 
poration who  has  taken  without  license  or  process  of  law  the  land  of  an 
individual  for  a  right  of  way,  and  such  company  continues  to  use  and  occupy 
the  land,  it  must  pay  to  the  owner  such  damages  as  will  fairly  compensate 
him. 

The  act  of  a  contractor  in  seizing  and  using  land  for  the  purpose  of  con- 
structing a  railroad  thereon  cannot  be  considered  as  the  act  of  an  independent 
contractor  in  a  case  where  the  company  subsequently  occupies  and  uses  the 
land  so  seized  in  operating  its  railroad.2 

736.  Restrictions  on  Use  of  Right  of  Way. — If  the  deed  restricts  the 
time  that  the  land  shall  be  used  for  railroad  purposes,  the  title  reverts  to  the 
grantor  when  it  is  no  longer  used  for  such  purposes.3  No  forfeiture  can  be 
claimed  in  such  a  case  because  the  land  is  used  for  additional  purposes,  if  it 
be  also  used  for  the  purpose  stipulated.4 

A  deed  of  land  providing  that  if  it  be  used  for  other  purposes  a  certain 
sum  shall  be  paid  in  addition  to  the  original  price,  upon  which  event  the  title 
shall  be  absolute,  does  not  create  a  qualified  or  determinable  fee,  but  only  a 
condition  subsequent.5  If  the  conveyance  do  not  restrict  the  use  of  the  right 
of  way,  there  will  be  no  reversion  in  the  grantor.  If  the  company  be  consoli- 
dated with  or  merged  into  another  company,  which  succeeds  to  all  its  rights, 
franchises,  etc.,  and  which  continues  to  operate  the  road,  the  right  of  way 
does  not  determine  and  revert  to  the  landowner  at  the  end  of  the  time  for 
which  the  original  company  was  chartered.6 

The  use  of  tracks  for  the  storing  of  cars  is  not  a  use  and  operation  as  a 
railroad,  and  a  conveyance  based  upon  the  latter  condition  is  of  no  further 
effect  when  the  track  is  used  merely  for  storing  cars.7 

The  loss  of  a  road  to  a  company  under  a  mortgage  sale  has  been  held  not 
an  abandonment  by  the  company.  A  railroad  company  may  purchase  its 
right  of  way,  and  such  contracts  are  like  any  other  contracts,  and  in  proper 
cases  a  specific  performance  will  be  decreed.  The  damages  for  the  breach  of 
such  a  contract  may  be  recovered,  and  the  measure  is  the  difference  between 
the  price  agreed  upon  and  that  assessed  in  condemnation  proceedings.  A 

1  East  Line  R.  Co.  v.  Garrett,  52  Tex.  5  Bd.  of  Ed.   v.  Trustees,   etc.,  63  111. 

133-  2°4- 

2  Bloomfield  R.  Co.  v.  Grace  (Ind.),  13  6  Miner  v.  N.  Y.  Cent.,  etc.,  R.  Co.,  123 
N.  E.  Rep.  680  [1887].                                           N.  Y.  242. 

3  State  v.  Brown,  27  N.  J.  Law  13.  7  Hickox    v.   Chicago,  etc.,  R.   Co..  78 
4McKelway  v.  Seymour,  29  N.  J.  Law       Mich.  615. 

321. 


509  RIGHT   OF   WAY   OF  RAILROAD.  §739- 

contract  to  convey  a  right  of  way  confers  no  right  to  enter  upon  the  land 
against  the  owner's  will.  If  entry  be  opposed,  the  company  may  resort  to 
equitable  remedies  to  obtain  possession  of  title.  If  there  be  a  breach  of  con- 
tract by  a  company,  a  landowner  has  a  remedy  in  an  action  for  damages.  If 
the  company  fail  to  comply  with  the  provisions  of  its  contract,  the  landowner 
may  have  a  lien  on  the  portion  of  the  roadway  which  the  contract  covers.  A 
contract  for  the  exclusive  right  of  way  of  a  railroad  has  been  held  contrary  to 
the  policy  of  the  law  and  will  not  be  upheld.1 

737.  Rights  of  Way  by  Condemnation. — The  method  of  acquiring  a  right 
of  way  by  condemnation  or  by  power  of  eminent  domain  is  purely  a  statutory 
process  given  by  the  sovereign  power  of  the  state  through  its  legislature.     It 
may  differ  in  the  different  states  not  only  as  to  the  ceremonies  to  be  observed, 
but  also  as  to  the  powers  granted.     In  every  case  the  statute  must  be  followed 
strictly  not  only  in  the  form  and  manner  of  making  the  application,  but  as  to 
all  the  preliminaries  required  by  the  act.* 

738.  Railroad  Right  of  Way  Acquired  by  Dedication  and  Prescription.-)* 
— A  railroad  right  of  way  may  be  acquired,  it  seems,   by  dedication,  but  it 
must   be  shown  that  the  occupation   or  use  was  with   the  knowledge  and 
acquiescence  of  the  landowner  for  the  full  period  of  time  fixed  by  the  law  of 
prescription  or  the  statute  of  limitations.     When  a  plat  was  executed  and  put 
upon  record  explaining  a  railroad  track  and  the  words  "depot  of  O.  &  R. 
Railroad,"  it  was  held  not  to  constitute  a  dedication  of  a  lot  to  a  railroad 
company  or  to  the  public  use.2 

A  permit  by  a  landowner  to  a  railroad  company  to  build  upon  his  land 
without  charge  on  condition  that  it  should  construct  ditches  to  carry  off  the 
water  was  held  to  constitute  a  dedication  of  the  water,  and  that  the  owner 
could  not  declare  the  permit  forfeited  because  the  company  failed  to  construct 
proper  ditches.  \ 

739.  Widths  of  the  Right  of  Way.— The  width  of  a  right  of  way  which 
may  be  acquired  by  a  railroad  or  other  company  by  the  exercise  of  its  right 
of  eminent  domain  is  usually  fixed  by  statute.      Proceedings  in  which  more 
land  has  been  condemned  than  was  authorized  by  the  legislature  have  been 
set  aside  entirely. 3     If  a  company  seeks  to  condemn  a  right  of  way  of  greater 
width  than  the  statute  has  authorized,  the  necessity  for  such  greater  width 
must  be  proven  by  the  company  who  seeks  to  condemn  it.4 

If  the  right  of  way  be  purchased,  its  wJdth  will  be  determined  by  the  terms 
of  the  conveyance,  and  there  seems  to  be  no  limit  to  the  area  which  may  be 
acquired  except  when  the  limit  is  fixed  by  the  charter  powers  to  acquire  lands. 

1  19  Amer.  &  Eng.  Ency.  Law  858.  Law  289. 

2Todd  v.  Pittsburg,  etc.,  R.  Co.,  19  *  Wisconsin  Cent.  R.  Co.  v.  Cornell 

Ohio  St.  514;  Daniels  v.  Chicago,  etc.,R.  Univ.,  52  Wis.  537;  Childs  v.  Cent.  R. 

Co..  35  la.  129.  Co.,  33  N.  J.  Law  323. 

•State  v,  Hudson,  etc.,  R.  Co.,46N.  J. 

*  See  Sees.  825,  864,  infra.     \  See  Sees.  683-686,  supra.      \  See  Sees.  701-710,  supra. 


§74°-          OPERATIONS  PRELIMINARY    TO    CONSTRUCTION.  $10 

In  the  absence  of  a  specific  description  as  to  the  width,  it  will  be  presumed 
that  the  company  may  take  the  same  width  as  is  allowed  by  charter  or  statute 
under  which  the  road  is  built.1 

740.  Rights  of  Way  by  License — Implied  Grants.* — A  landowner  may 
authorize  entry  upon  his  land  for  the  purpose  of  constructing  a  line  of  rail- 
road, or  other  way,  or  a  telegraph  line,  or  a  gas-,  oil-,  or  water-conduit,  by 
a,  mere  parol  license,  and  until  it  is  revoked  this  license  affords  to  the  grantee 
the  same  protection  which  he  or  it  would  enjoy  under  a  deed  or  after  the 
regular  condemnation  proceedings.     When  a  person  consents  that  a  company 
engaged  in  the  construction  of  such  lines  may  pass  through  his  land,  it  is  no 
trespass  for  such  company  to  enter  for  the  purpose  mentioned.2 

Such  a  license  to  do  a  particular  act  or  series  of  acts  upon  another's  land 
is  an  authority  which  does  not  create  any  estate  in  the  land.3  It  is  simply  a 
privilege  to  be  exercised  upon  the  land,  and  therefore  the  statute  of  frauds  is 
held  not  to  apply  in  such  cases.4  Such  a  parol  license  would  therefore  be 
void  as  a  grant  of  an  easement  or  incorporeal  hereditament.5 

A  license  to  a  railroad  company  to  enter  and  lay  its  tracks  gives  the  com- 
pany permission  to  occupy  the  full  width  of  the  right  of  way  authorized  by 
law.6  A  railroad  company  which  constructs  and  operates  its  road  by  license 
of  a  landowner  is  liable  for  negligence  in  the  operation  of  its  road,  as  for 
injury  to  cattle.7 

741.  Revocable  Character  of  License.* — Such  a  license  is  revocable,  and 
cannot  protect  a  company  from  an  entry  by  the  landowner.8     Generally  a 
license  is  revocable  at  the  will  of  the  licensor.      Especially  is  this  true  in  cases 
where  it  was  granted  in  ignorance  or  under  a  misrepresentation  of  the  effect 
of  its  exercise.9     When  a  railroad  company  has  entered  upon  land  under  a 
license  from  the  owner,  and   constructed  its  road,  it  has  been  held  that  it 
cannot  plead  such  license  to  an  action  for  trespass  for  running  its  trains  over 
said  land  after  the  license  has  been  revoked.     The  right  of  way  is  such  an 
interest  in  the  land  as  cannot  be  acquired  by  license,  but  only  in  the  manner 
provided  by  the  statute,  that  is,  by  deed  duly  executed  and  recorded.10 

A  license  may  be  revoked  by  a  subsequent  as  well  as  an  original  owner, n 

1  19  Amer.  &  Eng.  Ency.  Law  861.  etc.,  Co.,  no  Ind.  490. 

2  Louisville,  etc.,  R.  Co.  v.   Thompson  7  Mathews  v.  St.  Paul,  etc.,  R.  Co.,  18 
(Ky.).  18  B.  Mon.  735.  Minn.  434. 

3  Cook  v.  Sterns,  n  Mass.  533.  8  Eggleston    v.   N.  Y.,  etc.,  R.  Co.,  35 

4  Houston    v.    Laffee,    46    N.    H.    507;  Barb.  (N.  Y.)  162     See  Murdock  v.  Pros- 
Mumford  v.  Whiting  (N.  Y.),  15  Wend.  pect  Park  R.  Co.,  73  N.  Y.  579,  as  to  what 
380;  Blaisdell  z/.  Portsmouth,  etc.,  R.  Co.,  constitutes  a  parol  license. 

51  N.  H.  483.  9  19  Amer.  &  Eng.  Ency.  Law  859. 

5  Fort    -v.     New    Haven,    etc.,    Co.,    23  10  Baltimore,  etc.,  R.   Co.  v.  Algire,  63 
Conn.    214;    Pierce  on    Railroads    131;   8  Md.  319;  Hayes  v.  Richardson,  I  Gill  & 
Amer.  &  Eng.  Ency.  Law  694.  J.  (Md.),  366. 

6Hargiss  v.  Kansas  City,  etc.,  R.  Co.,  n  Foot   v.    New  Haven,    etc.,    Co.,    23 

loo  Mo.  210;   Campbell    v.    Indianapolis,       Conn.  214. 

*  See  Sees.  661-670,  supra. 


$11  RIGHT   OF   WAY   OF  RAILROAD.  §  741. 

unless  such  subsequent  owner  had  notice  of  the  license.1 

The  courts  have  distinguished  between  an  executory  license  and  one  that 
is  executed.  The  former,  which  has  been  created  by  parol,  is  revocable  at  the 
will  of  the  licensor.  In  some  jurisdictions,  after  a  license  has  been  executed, 
money  expended,  as  when  improvements  have  been  made,  and  the  parties 
cannot  be  put  in  statu  quo,  then  the  license  may  not  be  revoked,  and  any 
attempt  to  revoke  it  will  be  enjoined  by  a  court  of  equity.  The  decisions  do 
not  agree  as  to  their  policy  in  regard  to  the  revocation  of  licenses,  such  as 
arise  in  construction  work.  There  seems  to  be  a  hopeless  conflict,  and  the 
best  impressions  will  be  obtained  from  cases  decided.  A  number  have  been 
given  heretofore.* 

If  the  license  be  to  do  a  single  act,  it  will  be  irrevocable  after  the  act  is 
done,  doubtless  upon  the  ground  that  the  act  performed  is  frequently  of 'such 
a  nature  that  it  may  not  be  undone.  Licenses  to  do  a  particular  act  do  not 
in  any  degree  touch  upon  the  policy  of  the  law  which  requires  that  bargains 
respecting  the  titles  of  things  in  real  estate  shall  be  in  deed  or  in  writing. 
There  can  be  nothing  more  than  an  excuse  for  the  act,  which  would  otherwise 
be  a  trespass.2 

A  parol  license  to  enter  and  connect  the  tracks  of  railroad  companies 8  is 
revocable  even  though  valuable  improvements  have  been  made.  A  permit 
to  build  a  railroad  over  land  was  held  not  to  have  been  revoked  by  the  fact 
that  an  agent  of  the  owner  from  time  to  time  claimed  that  the  railroad  com- 
pany were  trespassers.4  Some  of  these  cases  are  based  upon  the  presumption 
that  when  a  man  assents  to  the  doing  of  an  act  his  consent  is  contingent  upon 
its  being  done  so  as  not  to  injure  him.5 

Permission  to  build  a  road  on  one's  land  implies  authority  to  use  it  after- 
wards; and  when  a  landowner  allows  the  construction  of  the  road  on  his  land, 
he  is  chargeable  with  knowledge  that  the  road  is  of  such  a  permanent  charac- 
ter that  it  cannot  be  well  removed  or  abandoned.6  One  who  has  permitted  a 
railroad  company  to  enter  upon  his  land  and  construct  its  roadbed,  track, 
etc.,  has  waived  his  remedy  by  injunction  or  action  for  the  trespass,  and  is 
confined  to  the  statutory  mode  of  obtaining  compensation.7 

An  owner  who  has  not  insisted  on  payment  as  a  condition  precedent  to 
the  surrender  of  his  land,  nor  attempted  to  impede  the  progress  of  the  road- 
making,  thus  inducing  a  railroad  company  to  expend  large  sums  therein, 
cannot  maintain  ejectment  on  the  ground  of  failure  to  prepay.8  The  owner 

1  Campbell    v.     Indianapolis,    etc.,    R.       425;  Woods  Railway  Law  611. 

Co.,  no  Ind.  490;  Masterson  v.  West  End  6  Harlow  z/.  Marquette,  etc.,  R.  Co.,  41 

R.  Co.,  72  Mo.  342.  Mich.  336. 

2  Cook  v.  Stearns,  n  Mass.  536.  7  Milwaukee,  etc.,  R.  Co.  v.   Strange, 
3Richmond,  etc.,  R.  Co.    v.   Durham.  63  Wis.  178;  Cassidy.^.  Chicago,  etc.,  R. 

104  N.  C.  658.  Co..  70  Wis.  441. 

4  Harlow  v.  Marquette,  etc.,  R.  Co.,  31  8  Provolt    v.   Chicago,  etc.,   R.   Co.,  57 
Mich.  346.  Mo.  256;  McAulay  v.  Western  Vt.  R.  Co,, 

5  Bankhardt   v.    Houghton,    27    Beav.  33  Vt.  311. 

*  See  Sees.  661-670,  supra. 


§  742-          OPERATIONS  PRELIMINARY    TO    CONSTRUCTION.  $12 

is  confined  to  an  action  for  damages,  or  a  suit  for  specific  performance.1 

742.  Obstructions  to  the  Right  of  Way. — A  railroad  company  may  cut 
and  trim  trees  or  a  hedge  whose  branches  extend  over  its  right  of  way.2     A 
suit  will  lie  at  the  instance  of  a  railway  company  for  the  removal  of  timber 
standing  in   such  proximity  to  its  right  of  way  as  to  endanger  the  safety  of 
passengers.3     There  can  be  no  doubt  as  to   these  rights  when   the  railroad 
company  owns  the  fee  of  its  right  of  way ;  and  this  is  also  true  when  it  has  only 
a  right  of  way,  if  the  trimming  of  trees  and  hedge  is  desirable  for  the  better 
protection  and  operation  of  the  railroad,  as  when  they  occasion  dampness  or 
obstruct  the  view. 

A  railroad  company  is  not  bound  to  remove  from  its  right  of  way  a  natural 
growth  of  trees  which  shade  and  injure  the  crops  upon  the  land  of  an  adjoin- 
ing owner,  and  also  sap  such  land  of  its  fertility,  it  not  appearing  that  the 
roots  or  branches  of  the  trees  penetrate  or  overhang  said  land.4 

Whenever  property  is  needed  by  a  railroad  company  to  increase  the  safety 
of  its  roadbed  at  points  where  it  is  unsafe  at  a  particular  time  of  the  year,  a 
legal  necessity  arises  for  condemning  the  property.5 

743.  Location  of  Railroad. — By  the  act  of  incorporation  of  a  railroad  the 
powers  of  the  company  to  locate  the  route  or  to  locate  the  railroad  are  defined 
in  diverse  ways  which  may  be  classified  under  four  headings,  viz.  :   (i)  where 
the  exact  location  of  a  railroad  is  prescribed  by  the  charter  or  ordinance,  as 
in  street  railways;   (2)   where  only  the   termini  and   general  route  are  pre- 
scribed, the  details  being  left  to  the  discretion   of  the  company;   (3)  where 
the  determination  of  the  general  and  particular  location  is  left  entirely  to  the 
company,  subject,  however,  to  the  approval  of  certain  public  authorities. 

When  discretion  is  allowed  it  must  not  be  abused,  and  cannot  be  exercised 
to  build  a  road  which  differs  entirely  from  that  intended  by  the  charter.  The 
exercise  of  the  discretion  granted  will  not  be  disturbed  unless  it  is  a  plain  case 
of  abuse  or  error.  When  it  has  been  once  exercised  the  power  is  exhausted, 
and  the  location  may  not  be  changed  without  specific  legislative  authority. 
The  authority  of  a  company  to  make  changes  will  be  construed  strictly.  The 
rule,  however,  has  not  always  been  strictly  enforced.  It  has  been  modified  and 
restricted  and  m  some  cases  even  denied.6 

744.  Elements  to  Determine  the  Location  of  a  Railroad. — In  determin- 
ing the  location  of  a  railroad  many  things  are  to  be  considered.      There  is  the 
necessity  of  keeping  strictly  within  the  powers  conferred  by  the  charter.      A 
corporation  being  the  creation  of  the  law  has  no  powers  whatever  except  such 
as  are  conferred  or  may  be  reasonably  inferred  in  order  to  carry  out  powers 

1  Provolt  v.  Chicago,  etc., R.  Co.,  supra.  *  Galveston  H.  &  S.  A.  R.  Co.  «/. 

And  see  New  Jersey,  etc.,  R.  Co.  v.  Van  Spinks  (Tex.  Civ.  App.),  36  S.  W.  Rep. 

Syckle,  37  N.  J.  Law  496.  780. 

''Toledo,  etc.,  R.  Co.  v.  Green,  67  111.  5  Bigelow  v.  Draper  (N.  D.),  69  N.  W, 

199.  Rep.  570 

•Louisville  &  N.  R.  Co.  v.  Johnson  6  19  Amer.  &  Eng.  Ency.  Law  826,  827. 
(Ky.),  37  S.  W.  Rep.  844- 


513  RIGHT   OF   WAY   OF  RAILROAD.  §  745. 

bestowed  under  the  charter.  Then  there  are  the  obligations  and  relations  of 
the  company  itself  to  the  stockholders  and  bondholders.  The  company  owes 
certain  contract  obligations  to  the  subscribers  to  its  capital  stock,  which 
would  be  affected  if  important  departure  from  the  location  of  the  road  were 
made.  Furthermore,  a  railroad  company  is  a  guasi-public  corporation  and 
owes  to  the  public  certain  duties,  in  the  location  and  operation  of  the  road, 
which  the  laws  have  declared  must  be  respected. 

745,  Discretion  in  Selecting  a  Route  Not  Definitely  Fixed  by  Charter. 
— The  interpretation  of  the  language  of  charters  in  regard  to  the  location  of 
railroads  under  the  several  clauses  employed  is  interesting  in  that  it  suggests 
what  may  be  expected  in  the  construction  of  charters  using  similar  language. 
A  charter  to  construct  a  railroad  in  or  near  a  city,  thence  to  any  part  of  a 
town,  authorizes  the  road  to  be  located  in  such  manner  and  time  as  may  be 
deemed  convenient.1  A  general  railroad  act  authorizing  changes  in  the  route 
of  railroads  was  held  to  be  confined  to  the  change  of  route,  not  of  the  termini.2 
Authority  to  construct  a  road  beginning  at  a  point  on  Lake  Superior  in  the 
state  of  Minnesota  or  Wisconsin  westward  to  some  point  on  Puget  Sound  was 
held  to  give  the  company  its  choice  as  to  a  starting-point  on  Lake  Superior.3 

Railroad  charters  that  do  not  express  anything  to  the  contrary  will  be  taken 
to  allow  an  exercise  of  discretion  in  the  location  of  the  route,  so  far  as  it  is 
incident  to  the  ordinary,  practical  problems  of  surveying  and  to  the  nature 
of  the  country,  etc.4  If  only  the  two  terminal  points  are  designated  and 
there  are  several  routes  equally  feasible,  the  most  direct  will  be  deemed  to 
have  been  contemplated;  but  if  there  is  a  difference  in  the  feasibility  of  the 
routes,  a  reasonable  discretion  will  be  allowed  in  the  selection.5  Authority 
to  extend  a  road  fixes  one  terminus  of  the  same  and  does  not  authorize  the 
construction  of  an  independent  road.6 

Authority  to  build  a  road  by  the  most  direct  and  least  expensive  route 
will  not  permit  a  private  individual  to  question  the  location  after  the  road  has 
been  located  and  built.7  If  the  charter  does  not  provide  for  the  location  of 
the  road,  the  company  may  locate  it  and  its  stations  at  such  points  as  will 
best  serve  public  interest.8 

Authority  to  connect  a  road  with  any  railroad  constructed  or  to  be 
constructed  at  any  point  in  the  northern  boundary  of  two  counties  was  held 
not  to  limit  the  terminus  of  the  road  to  some  point  reached  by  one  of  the 
other  roads.9 

1  Boston  W.   P.  Co.  v.  Boston,  etc.,  R.  R.  Co.,  3  Ind.  464. 

Co.  (Mass.),  23  Pick.  360.  6 Savannah,    etc.,   R.  Co.   v.   Shiels,  33 

a  19  Amer.  &  Eng.  Ency.  Law  926,  and  Ga.  601;  Bellville  R.  Co.  v.  Gregory,  15 

cases  cited.  111.  20. 

3  Northern    Pac.    Ry.    Co.   v.   Doherty  7  Cleveland,  etc.,  R.  Co.  v.  Speer,  56  Pa. 

(Wis.),    75    N.  W.     Rep.    1079;    Western  St.  326. 

Union  R.  Co.  v.  Smith,  75  111.  496  [1874].  8  Frankfort,  etc.,  T.  Co.  v.  Phila.,  etc., 

*  Southern  Minn.   R.  Co.  v.   Stoddard,  R.  Co.r  54  Pa.  St.  345. 

6  Minn.  150.  'Com.  v.  Crosscut  R.  Co.,  53  Pa.  St. 

5  Newcastle,  etc.,  R.  Co.  v.  Peru,  etc.,  62. 


§74-6.  OPERATIONS  PRELIMINARY    TO    CONSTRUCTION.  514 

Where  a  railroad  company  has  surveyed  and  marked  its  line  through 
plaintiff's  land  and  he  has  conveyed  to  it  a  strip  of  ground  "  lying  along  and 
including  the  established  line  of  railway  to  be  constructed  by  said  company," 
the  deed  refers  only  to  the  line  as  then  surveyed,  and  not  to  a  line  that  may 
be  thereafter  established.1 

Authority  to  construct  a  railroad  along  a  river  does  not  authorize  its  con- 
struction in  or  upon  the  river.2  A  mere  enumeration  of  certain  places  in 
designating  the  route  of  a  road  does  not  require  it  to  be  located  through  them 
in  the  order  named.3 

746.  Discretion  must  be  Honestly  Exercised  in  Locating  Road, — In  the 
location  of  a  railroad  between  points  named,  the  company  must  have  regard 
for  the  advantage  of  the  route  as  a  route  between  the  points  prescribed,  even 
though  the  charter  specified  that  the  road  be  built  "  by  such  route  as  a  special 
company  shall  deem  most  expedient  and  advantageous."     The  interests  of 
the  road  and  the  public  are  to  be  considered,  and  not  the  personal  aims  and 
advantage  of  individuals  or  of  other  corporations.     An  injunction  will  lie  to 
prevent  the  abuse  of  the  discretion  conferred  by  the  charter.4 

747.  Charter  Authorizes  but  One  Location  of  the  Road. — Authority  "to 
enter  upon  any  land  to  survey,  lay  down,  and  construct  its  road,"  to  appro- 
priate land  for  "necessary  side-tracks  and  a  right  of  way  over  adjacent  lands 
sufficient  to  enable  it'to  construct  and  repair  its  road,"  has  been  held  not  to 
authorize  the  company  to  appropriate  a  temporary  right  of  way  to  be  used  as 
a  substitute  for  the  main  line  while  the  latter  was  in  course  of  construction.5 

When  the  location  has  once  been  decided  upon  it  is  usually  held  to  be 
fixed  so  that  no  change  of  location  can  be  made  without  a  special  act  of 
legislature.  Even  when  express  authority  was  given  "to  vary  the  route  and 
change  the  location,  after  the  first  selection  had  been  made,  whenever  a  better 
and  cheaper  route  could  be  had,  or  whenever  any  obstacle  to  the  continuation 
of  said  location  was  found  either  by  difficult  construction  or  by  difficulty  in 
procuring  a  right  of  way  at  a  reasonable  cost,"  it  was  held  that  authority  was 
not  conferred  upon  the  corporation  to  relocate  its  road  after  it  had  been  com- 
pleted, or  to  take  private  property  for  the  uses  of  the  road.6 

After  the  maps  and  plans  have  been  filed  as  required  by  law  and  the  land 
has  been  viewed  and  damages  assessed,  the  location  may  not  be  changed 
except  upon  a  new  petition.7  The  power  to  lay  double  tracks  is  not  exhausted 
by  the  laying  of  one  track,  but  may  be  exercised  subsequently.8 

1  Owensboro,   etc.,    R.  Co.    v.    Barker  5  Currier  v.  Marietta,  etc.,   R.  Co.,   n 
(Ky.),  37  S.  W.  Rep.  848.  Ohio  St.  228. 

2  Stevens  v.   Erie  R.  Co.,  21  N.  J.  Eq.  '  v~*» rhead  v-  .Little  Miami  R.  Co.,  17 
259.  Ohio  340. 

3  Commonwealth    v.   Fitchburg  R.  Co.  7  Lance's  App-al,  55  Pa.  St.  16. 
(Mass.),  8  Cush.  240.  8  Philadelphia,  e:~     R.  Co.  v.  Williams, 

*  19  Amer.  &  Eng.  Ency.  Law  827,  and       54  Pa.   St.   103;   Peopi^   Pass.  R.  Co.  v. 
cases      cited;     Wait's     Engin.    &    Arch.       Baldwin  (Pa.),  37  Leg.  Int.  424. 
•Jurisp.,  §  84. 


515  RIGHT  OF   WAY  OF  RAILROAD.  §  75O. 

Authority  to  construct  a  railroad  from  an  incorporated  city  to  a  certain 
point  where  freight  and  passenger  depots  are  built  does  not  preclude  the  com- 
pany from  extending  its  lines  to  a  point  beyond  where  the  depots  are  located.1 

748.  Effect  of  Change  in  Location  on  Subscriptions  Paid  or  Pledged.— 
When  a  railroad  company  has  received  donations  or  other  assistance  from  a 
Tillage  or  its  inhabitants  and  has  engaged  to  locate  its  road  through  certain 
places  and  to  grant  certain  privileges  in  connection  with  the  road,  it  cannot 
afterwards  change  its  location  without  making  compensation  to  such  parties.2 
Where  subscriptions  have  been  made  to  secure  the  location  of  a  road  through 
a  certain  place,  they  are  invalid  if  the  location  be  changed.      A  note  given  to 
aid  the  construction  of  a  road  cannot  be  recovered  upon  if  the  road  be  built 
upon  a  different  route  without  the  consent  of  the  maker  of  the  note.3 

749.  Exercise  of  Authority  to  Change  Route   of  Road.  —  Authority  to 
change  the  route  of  a  road  does  not  permit  a  change  of  the  terminal  points.4 
Permission  to  vary  the  route  and  change  the  location  after  selection  does  not 
permit  the  relocation  of  a  road  and  condemnation  of  land  after  the  road  has 
been  built.      Power  to  change  the  location  of  tracks  on  account  of  difficult 
construction  and  other  causes  should  be  exercised  before  the  track  is  built.5 

The  power  to  change  is  at  an  end  when  the  change  has  once  been  made.6 
In  some  cases  the  power  to  make  changes  has  been  permitted  where  the  com- 
pany purchased  the  right  of  way  instead  of  condemning  it  by  eminent 
domain.7  Changes  have  been  permitted  by  reason  of  the  necessities  of  the 
case,  when  no  detriment  accrued  to  the  public  8  and  before  the  road  is 
actually  built.9 

750.  Power  to  Change  Location  Limited  to  Necessities  of  Case.  —  A  close 
study  of  the  cases  shows  that  the  right  to   change  a  location  has  not  been 
denied  where  there  was  sufficient  reason  for  the  change.      The   court   may 
inquire  into  the  necessities  for  the  change,  and  if  such  necessities  do  not  exist, 
the  change  will  be  forbidden  in  justice  to  the  stockholders  of  the  company 
and  to  the  public.      A  railroad  company  should  not  be  allowed  to  change  its 
location  from  motives  of  caprice  or  for  the  sake  of  private  gain  or  convenience, 
but  it  may  be  expected  that  changes  will  be  permitted  whenever  the  interests 
and  the  convenience  of  the  public  are  to  be  subserved,  and  where  the  accom- 
plishment of  the  ends  for  which  the  road  was  built  will  be  realized  and  a  better 
and  more  economical  location  can  be  selected.10     Authority  of  a  company  to 


of  W.   Pa.   R.  Co.,  99  Pa.  St.  6  Mason  v.  Brooklyn,  etc.,  R.  Co.  (N. 

155;  Western  Union  R.  Co.  v.  Smith,   75  Y.\  35   Barb.  373. 

111.  496  [1874].  7Mine  Hill,  etc.,  R.  Co.  v.  Lippincott, 

2  Chapman  v.   Mad  River,  etc.,  Co.,  6  86  Pa.  St.  486. 

Ohio  St.  119.  8  Atkinson  v.  Marietta,  etc.,  R.  Co.  ,15 

3  19  Amer.  &  Eng.   Ency.  Law  829.  Ohio  St.  21. 

4Atty.-Gen.  v.  West.  Wis.   R.   Co.,  36  9  Mahasha  Co.  R.  Co.  v.  Des  Moines  V. 

Wis.  466;  Brigham  v.  Agr.   Br.   R.   Co.  R.  Co.,  28  la.  437. 

(Mass.),  I  Allen  316.  10  19  Amer.  &  Eng.  Ency.  Law  830,  and 

5  Atkinson  v.  Marietta,  etc.,  R.  Co.,  15  many  cases  cited. 
Ohio  St.  21. 


§  751-          OPERATIONS  PRELIMINARY   TO    CONSTRUCTION.  516 

select  lands  for  its  location  is  exhausted  when  the  time  limited  in  its  charter 
for  the  completion  of  the  road  has  expired.  A  company  is  not  required  to 
place  its  track  in  the  center  of  its  right  of  way,  but  may  locate  it  in  its  dis- 
cretion upon  any  part  thereof. 

751.  Frier  Location  and  Occupation  of  Right  of  Way. — Lands  already 
appropriated  or  taken  under  public  grants  for  one  purpose  may  not  be  occu- 
pied or  taken  for  other  purposes  inconsistent  with  the  use  to  which  they  have 
first  been  put.  This  is  true  even  though  they  be  not  specially  excepted  from 
such  subsequent  grant  or  appropriation.  Land  acquired  by  one  railroad 
company  under  the  right  of  eminent  domain  cannot,  in  absence  of  express  or 
necessarily  implied  statutory  permission,  be  taken  by  another  railroad  com- 
pany to  which  it  would  be  convenient  but  not  necessary.1 

Where  one  railroad  company,  duly  authorized,  has  built  its  roadbed  and 
obtained  its  right  of  way  and  grounds  for  station-buildings,  machine-shops, 
side-tracks,  etc.,  through  a  defile  or  canyon,  the  court  will  grant  an  injunc- 
tion in  its  favor  restraining  another  railroad  corporation,  authorized  to  build 
to  the  same  point,  from  going  upon  or  interfering  with  the  track  or  right  of 
way  of  the  corporation  first  in  possession  until  an  adjudgment  of  rights  can 
be  made  by  the  court  under  the  general  railroad  law  of  Montana.2  One  rail- 
road corporation  is  not  empowered  to  be  the  judge  of  the  necessity  of  the 
taking  or  using  the  roadbed  or  right  of  way  built  or  secured  by  the  other  rail- 
road company,  but  the  necessity  is  a  question  for  decision  in  the  court  of  the 
county  in  which  the  road  is  located.3 

When  grants  of  a  definite  location  are  inconsistent  one  with  the  other,  the 
earlier  one  will  prevail ;  and  if  the  selection  of  the  route  has  been  left  to  the 
companies,  the  right  to  certain  lines  will  be  in  the  company  which  made  the 
location  first.  A  railroad  company  is  not  bound  to  construct  its  road  or  lay 
its  track  so  as  to  be  the  least  possible  inconvenience  to  the  owner  of  the  land 
over  which  the  right  of  way  passes.4 

A  prior  location  prevails,  and  one  company  cannot  by  purchasing  the  land 
and  proceeding  to  lay  its  track  deprive  of  its  land  another  company  which  had 
previously  surveyed  and  staked  out  the  line.5 

Where  the  conditions  and  circumstances  attending  the  case  are  such  that 
but  one  location  can  be  made,  a  court  of  equity  may  compel  the  locator  and 
owner  of  the  route  to  allow  another  company  the  use  of  such  location.  Such 
cases  arise  in  ravines  or  canyons  where  the  cost  of  constructing  a  parallel  line 


1  Barre  R.  Co.?/.  Montpelier  &  W.   R.  5  Sioux  City,  etc.,   R.   Co.  v.   Chicago, 
Co.  (Vt.),  17  Atl.  Rep.  923.  etc.,  R.  Co.,  27  Fed.  Rep.  770;  Kanawha, 

2  Revised    Statutes    Montana,    p.    461,  etc.,    R.   Co.    v.   Glen  Jean,  etc.,   R.  Co. 
div.  5,  art.  3,  c.  15,  sec.  309.  (W.  Va.),  30  S.  E.    Rep.  86  [1898].     And 

3  Montana  Cent.   Ry.   Co.  v.   Helena  &  see  Coe  v.  N.  J.  Mid.  R.  Co. ,31  N.  J.  Eq. 
R    M    R.   Co.  (Mont.),   12  Pac.    Rep.  916  105.     But   see   Joplin    &    W.    Ry.  Co.  v. 
fj887l.  Kansas  City,  etc.,  Ry.  Co.  (Mo.),  37  S. 

4  International,  etc.,  R.  Co.  v.  Pope,  62  W.  Rep.  540. 
Tex.  313- 


$17  RIGHT  OF   WAY  OF  RAILROAD.  §  752» 

would  be  so  great  as  to  forbid  it.     A  third  railroad  along  the  Hudson  River 
would  be,  without  doubt,  a  similar  case.1 

The  knowledge  that  these  rights  depend  upon  prior  location  of  the  line 
induces  rival  companies  to  great  activity  to  outstrip  one  another  in  the  loca- 
tion of  their  lines,  and  it  frequently  is  the  cause  of  sending  surveying  parties 
into  the  field  in  midwinter  and  under  the  most  arduous  and  expensive  con- 
ditions. A  survey  followed  by  occupation  for  the  purpose  of  building  a  rail- 
road will  determine  the  location  so  as  to  give  priority  over  other  companies 
seeking  to  appropriate  the  land  covered  by  it.2 

The  running  of  '  *  scare-lines  ' '  has  been  held  not  to  constitute  such  a  fraud 
as  will  invalidate  a  settlement  with  a  rival  company  unless  the  lines  were  run 
where  the  company  had  not  a  legal  right  to  locate  its  lines. 3  A  location  before 
the  company  was  incorporated  will  not  hold  as  against  another  corporation 
making  and  adopting  the  same  location  at  a  later  day.4 

Where  a  railroad  company  has  acquired  and  paid  for  its  right  of  way  and 
has  abandoned  it,  a  second  company  may  acquire  it  by  condemnation ;  but 
unless  the  landowner  has  refunded  the  compensation  received  by  him  from 
the  first  company,  he  is  not  entitled  to  the  compensation  awarded  upon  the 
condemnation  by  the  second  company.  Such  compensation  is  to  be  awarded 
to  the  first  company  or  its  legal  representatives.5 

Where  a  highway  is  laid  out  across  a  railroad  the  railroad  company  is 
entitled  to  compensation  for  the  fair  value  of  the  land  taken,  subject  to  its 
use  for  railroad  purposes.6 

752.  Maps,  Plans,  etc,,  Describing  the  Location, — Maps,  plans,  and 
profiles  of  the  location  or  survey  of  road  are  usually  required  to  be  made, 
verified,  and  recorded  before  proceedings  for  condemnation,  etc.,  can  be 
commenced.  When  this  is  done  it  determines  the  exact  property  taken  for 
the  location,  and  constitutes  the  record  of  the  lands  taken.  Generally  the 
location  is  not  complete  until  this  description  has  been  filed  for  registry. 
Such  record  is  called  a  description,  and  is  accompanied  by  maps,  plans,  and 
profiles  with  suitable  references.  Such  record  must  be  so  exact  and  definite 
as  clearly  to  identify  the  property  taken  and  to  define  its  precise  limits.7 
When  ambiguity  arises  in  a  description  it  may  be  explained  after  the  same 
manner  as  other  descriptions  or  by  the  actual  possession  by  the  company.* 

Under  the  laws  of  New  York  the  map  required  to  be  filed  by  a  railroad 

Ji9  Amer.  &  Eng.  Ency.  Law  832.  Co.  (N.  Y.),  n  Abb.  N.  Cas.  386. 

2  Pierce   on    Railroads    257;    Atchison,  6  Dubuque    &    Dak.    R.    Co.    v.    Diehl 

etc.,   R.   Co.    v.   Mecklin,    23    Kan.    167;  et  al.t  64   Iowa.     As  to  what  is  not   an 

Denver,  etc.,  R.  Co.  z/.  Canon  City,  etc.,  abandonment,    see    Memphis,    etc.,     Ry. 

R.  Co.,  99  U.  S.  463.  Co.  v.  Humphreys  (Ark.),  48  S.  W.  Rep. 

'Mills  Co.  v.  Th«  B.  &  M.  R.  Co.,  47  86  [1898]. 

Iowa  66.  6  Boston  &  A.  R.  Co.  v.  City  of  Cam- 

*New  Brighton,  etc.,  R.  Co.  v.   Pitts-  bridge  (Mass.),  34  N.  E.  Rep.  382. 

burg,  etc.,  R.  Co.,  105   Pa.  St.   13.     But  7 19  Amer.  &  Eng.  Ency.  Law  833. 
see  N.  Y.,  etc.,  R.  Co.  v.  N.  Y.,  etc.,  R. 

*  See  Sees.  541-570,  supra. 


§753-          OPERATIONS  PRELIMINARY   TO    CONSTRUCTION.  518 

company  is  sufficient  if  it  shows  the  alignment  and  profile.  It  is  not  essential 
that  it  should  show  all  the  connections,  turnouts,  and  switches.1 

Maps,  plans,  and  profiles  filed  with  a  description  of  a  railroad  line  must 
be  intelligible  without  thfc  aid  of  parol  evidence,  and  should  be  connected 
with  the  description  of  the  land.2  A  map  filed  with  the  location  of  a  road 
and  referred  to  as  a  part  of  the  said  location  will  explain,  but  not  modify  or 
control,  a  written  description  of  the  location.3  If  the  location  can  be  fixed  by 
a  comparison  of  the  plan  and  the  description,  that  is  enough.4  * 

Where  the  president  of  a  railroad  company  filed  with  the  Secretary  of  the 
Interior  a  map  showing  the  proposed  route  of  the  road,  as  provided  in  the  act 
of  incorporation,  without  authority  of  the  board  of  directors,  and  the  map  was 
rejected  by  the  Secretary,  it  is  a  nullity.5 

753.  Terminals  of  a  Railroad. — The  terminals  of  a  road  are  usually  given 
in  the  articles  of  incorporation  and   in  the  maps  and  plans  filed  with  them. 
A  slight  defect  in  such  description  has  been  held  not  fatal  to  the  validity  of 
the  articles,  as  where  one  terminal  was  given  and  the  other  described  as  being 
"at  or  near  B. "  or  as  "some  convenient  point  in  the  county  of  S.,  there  to 
connect  with"   another  road.      The  words  "  beginning  at"   or  "  from  "   or 
"  between  "  or  "  running  "  to  certain  places  have  been  held  inclusive  and  to 
authorize  the  road  to  be  located  within  such  places.6 

In  case  of  a  road  whose  terminus  was  the  boundary  of  the  town  it  was 
held  confined  to  the  town  limits  at  the  time  when  the  grant  was  made,  and 
that  it  was  not  extended  when  the  town  was  enlarged.7 

754.  Property  in  Location. — The  term  "  location"  is  used  to  designate 
the  line  over  which  it  is  proposed  to  run  the  road  after  such  line  has  been 
surveyed  and  fixed  upon  as  the  route  of  .the  road,  but  before  acquiring  the 
land  which  it  describes.     "  Locate  "  has  been  held  to  mean  to  fix  or  establish 
the  line.     It  has  been  held  not  necessary  that  the  route  should  have  been 
staked  and  marked  on  the  ground  to  fix  the  liability  of  subscribers  to  the 
stock,  and  to  constitute  a  location.      Location  may  be  completed  by  resolu- 
tions or  acts  of  the  directors  showing  a  corporate  determination  to  construct 
the  road  over  a  particular  route.     The  word  "locate"  is  synonymous  with 
the  words  "  laying  out."  8 

1  People  v.  Brooklyn,  etc.,  R.  Co.,  89  R.  Co.  v.  Bruner,  55  Pa.  St.  318;    In  re 
N.  Y.  75  [1882].  Park  Commrs.,  65  N.  Y.  131. 

2  Portland,  etc.,  R.  Co.  v.  York  Co. ,65  5  Northern  Pac.  Ry.  Co.  v.  Doherty,  75 
Me.  293;  Wilson  v.  Lynn,  119  Mass.  174;  N.  W.  Rep.  1079. 

Gd.  June.  R.   Co.   v.   Middlesex  (Mass.),  6  19    Amer.    &    Eng.    Ency.     Law    834; 

14  Gray  553;  Hunt  v.  Smith,  9  Kan.  137;  Western  Union  R.   Co.  v.   Smith,   75   111. 

Quincy,  etc.,  R.  Co.  v.   Kellogg,  54  Mo.  496.   But  see,  contra,  North  Eastern  R.  Co. 

334.  v.  Payne  (S.  C.),  8  Rich.  177. 

'Hazen  v.  Boston,  etc.,  R.  Co.  (Mass.),  7  Com.  v.  Erie,  etc.,  R.  Co.,  27  Pa.  St. 

2  Gray  574.  33Q;  Chope  v.  Detroit,  etc.,  Pk.  Rd.  Co., 

*Gd.  June.,   etc.,   R.  Co.  v.  Middlesex  37  Mich.  195. 

(Mass.),    14    Gray    553.     As    to  quantity  8 19  Amer.  &  Eng.  Ency.  Law  835. 
and  description  in  such  cases  see  Penn. 

*  See  Sees.  541-640,  supra. 


519  RIGHT   OF   WAY  OF  RAILROAD.  §  755. 

A  company  has  a  right,  from  the  beginning,  to  its  location  against  all 
except  the  owners  of  the  land,  but  it  requires  condemnation  proceedings  or 
purchase  of  the  land  to  make  the  location  a  right  of  way  and  to  perfect  the 
company's  title  thereto.  The  company's  right  by  location  is  such  that  it 
cannot  be  deprived  of  such  right  by  the  conveyance  of  the  land  to  a  third 
party  or  to  another  company. 1  The  right  of  a  company  to  its  location  is  not 
lost  or  impaired  by  non-user  unless  the'  non-user  be  permanent  and  entire. 
It  is  not  lost  when  a  company  fails  to  double-track  its  right  of  way  for  ten 
years, 2  or  to  construct  its  road  for  thirteen  years.3 

But  failure  of  the  company  for  eleven  years  to  exercise  a  grant  in  its 
charter  of  an  optional  circuit  over  another  road  was  held  to  defeat  the  right 
as  against  other  companies.4  In  case  a  railroad  misuses  its  right  of  location 
the  original  owner  may  maintain  a  writ  of  entry  or  some  equivalent  proceed- 
ing.5 The  misuse  does  not  necessarily  operate  as  a  forfeiture. 

Where  a  railroad  company  ceases  to  use  as  its  right  of  way  land  which  it 
had  appropriated  for  that  purpose,  and  leases  it  to  a  person  who  takes  exclu- 
sive possession,  the  company  thereby  abandons  its  easement,  and  the  land 
reverts  to  the  original  owner  free  from  the  easement. 6 

755.  Abandonment  of  Location  or  Eight  of  Way. — No  general  law  can 
be  laid  down  as  to  what  will  constitute  an  abandonment  or  relocation  of  a 
road.  It  will  depend  upon  the  circumstances  of  each  case,  and  is  doubtless 
a  question  of  intention  to  be  determined  by  the  jury. 

Abandonment  has  been  presumed  when  there  had  been  a  non-user  for  ten 
years,  when  the  right  of  way  had  been  leased  without  authority,  or  when 
another  company  had  been  allowed  to  occupy  and  use  the  location.  The 
mere  sale  or  transfer  of  the  right  of  way  to  another  company  before  the  road 
was  built  was  held"  not  an  abandonment,  especially  so  long  as  there  was  an 
intention  to  complete  an  incompleted  part  of  the  road.  The  failure  to  run 
passenger- cars  does  not  operate  as  an  abandonment  when  the  road  is  regularly 
hauling  freight,  and  when  the  company  is  ready  at  all  times  to  transport  pas- 
sengers for  a  reasonable  compensation.  The  erection  of  a  structure  for 
amusement  on  the  land  of  a  railroad  has  been  held  not  to  constitute  an 
abandonment  of  its  right  of  way.7 

By  abandonment  of  its  location  or  right  of  way  a  company  Toses  all  its 
rights  thereto,  and  the  original  owners  may  take  possession.  The  company 
may  remove  its  depot  building  when  it  abandons  that  part  of  its  road.  If  a 
road  has  failed  to  occupy  one  of  several  routes,  it  may  not  complain  because 

1  Sioux  City,  etc.,  R.  Co.  v.  Chicago,       620. 

etc.,  R.  Co.,  27  Fed.  Rep.  770.  5  Proprietors  v.  Nashua,  etc.,  R.  Co., 

2  Hestonville,  etc.,  R.  Co.  v.  Phila.,  89       104  Mass.  I. 

Pa.  St.  210.  6Roby  v.  Yates  (Sup.),  23  N.  Y.  Supp. 

3  Barlow  v.  Chicago,  etc.,  R.  Co.  29  la.       1108. 

276.  7 19  Amer.  &  Eng.  Ency.  Law  836,  and 

4Girard  College,  etc.,   R.  Co.  v.  Thir-       cases  cited. 
teenth,    etc  ,    R.    Co.,    7    Phila.    (Penn.) 


§  7 5 &          OPERATIONS  PRELIMINARY    TO    CONSTRUCTION.  $2O 

it  is  used  by  another  company.  If  the  whole  road  or  material  bought  has 
been  abandoned,  such  abandonment  may  be  made  the  ground  for  a  forfeiture 
of  the  company's  corporate  rights  and  franchises.  Where  a  road  chartered  to 
operate  between  two  places  named  is  built  and  operated  only  part  of  the  way, 
it  may  have  its  charter  and  its  corporate  existence  annulled  by  proper  pro- 
ceedings. A  location  which  is  illegal  may  be  ratified  and  made  perfect  by  the 
legislature,  and  a  defective  location  has  been  in  some  cases  reformed  by  a 
court  of  equity.1 

When  easements  of  right  of  way  are  no  longer  needed  by  a  railroad  com- 
pany it  may  release  them  to  the  owner  of  the  land.2  The  fact  that  a  railroad 
.company  has  not  completed  its  road  within  the  time  limited  by  its  charter 
-does  not,  as  to  third  persons,  affect  its  title  to  land  acquired  for  right  of  way, 
since  only  the  state  can  take  advantage  of  the  default.3 

The  surveyors  of  a  company  may  enter  upon  land  for  the  purpose  of 
•examination,  preliminary  survey,  location,  etc.,  without  previously  acquiring 
the  land,  and  the  statute  authorizing  such  entrance  is  not  invalid  as  a  taking 
-of  private  property  without  due  process  of  law  or  without  just  compensation.4 
The  only  compensation  to  which  the  owner  is  entitled  is  for  the  injury  which 
as  done  to  his  property.5  * 

An  act  providing  for  the  incorporation  of  railroad  companies,  giving  to 
such  companies  the  right  to  enter  on  and  proceed  with  the  survey  and  con- 
struction of  their  roads  on  private  land  while  proceedings  for  the  condemna- 
tion of  the  same  are  pending,  and  before  the  compensation  is  paid,  upon 
giving  security  for  the  damages  that  may  be  ascertained,  has  been  held  not 
unconstitutional. 6 

756c  Steam  Railroads  in  Streets  and  Highways. — "  Steam  railroads  in 
a  public  street  or  highway  are  a  source  of  great  inconvenience,  annoyance,  and 
danger  to  the  public,  and  nothing  less  than  a  plain  and  express  grant  will 
authorize  their  construction  there.  Statutes  granting  such  a  right  must  be 
strictly  construed,  and  authority  to  construct  a  railroad  longitudinally  in  a 
public  highway  cannot  be  implied  from  a  general  power  to  condemn  land  for 
a  right  of  way,  or  from  a  specific  power  to  construct  the  road  to  certain  points 
within  the  city  limits."  A  steam  railroad  built  in  a  public  street  or  highway 
without  authority  of  the  law  constitutes  a  nuisance.  A  court  of  equity  will 
restrain  it,  and  such  damages  as  result  may  be  recovered.  The  charter  of  a 

1  19  Amer.  &  Eng.  Ency.  Law  837,  838.  v.  Western  Pac.  R.  Co.,  31  Cal.  538;Cush- 

2Flaten  v.   City  of  Moorhead  (Minn.),  man    v.  Smith,  34    Me.   247;    Stewart   v. 

59  N.  W.  Rep.  1044.  Mayor,  7  Md.   515;  Walther  v.  Warner, 

3  Chicago   &    E.    I.    R.  Co.   v.    Wright  25  Mo.,  289. 

(111.  Sup.),  38  N.  E.  Rep.  1062.  5  Bonaparte  v.   Camden    &   A.  R.  Co., 

4  Polly  v.  Saratoga,  etc.,  R.  Co.  (N.  Y.),       Bald.  C.  C.  205. 

9    Barb.    449;    Bloodgood    v.    Mohawk,  6  Fox  v.  Western  Pac.  R.  Co.,  31  Cal, 

etc.,  Co.  (N.  Y.),  14  Wend.  51;  Lyon  v.       538  [1867]. 
Greenbay,  etc.,  R.  Co.,  42  Wis.  538;  Fox 

*  See  Sees.  351-360,  supra. 


521  RIGHT   OF   WA  Y   OF  RAILROAD.  §  757- 

railroad  company  which  authorizes  the  company  to  locate  its  road  and  take  land 
necessary  therefor  does  not  authorize  it  to  occupy  a  street  longitudinally, 
though  it  may  cross  such  street.1  It  must  not  occupy  the  street  to  any  greater 
extent  than  is  necessary  for  the  crossing.  Authority  to  locate  a  railroad  upon 
or  through  a  street  must  be  specifically  conferred  in  clear  and  express  terms  or 
by  implication  which  is  clear  and  unavoidable.  If  the  constitution  does  not 
contain  provisions  to  the  contrary,  the  legislature  may  authorize  the  use  and 
occupation  of  one  or  more  highways  by  a  railway  company  without  the  consent 
of  local  authorities.2  The  legislature  has  complete  and  exclusive  control  of  all 
highways  of  the  state,  and  it  may  directly  exercise  its  power  of  control  or  it 
may  delegate  such  power  to  a  municipality.  The  right  to  build  a  railroad  in 
the  streets  of  a  city  is  not  dependent  on  the  consent  of  the  city  unless  the 
company's  charter  expressly  so  provides,  but  a  right  of  way  may  be  acquired  by 
condemnation  proceedings  under  the  legislative  enactment  as  in  other  cases.3 
A  city  cannot  authorize  the  construction  and  operation  of  a  railroad  in  its 
streets  by  reason  of  its  usual  and  ordinary  powers  over  such  streets  within  its 
limits.  Such  authority  must  have  been  clearly  and  explicitly  granted  to 
the  city  by  the  legislature.  It  cannot  be  implied.  Such  a  power  may  be 
given  to  all  the  municipalities  of  the  state  by  a  general  law  subject  to  certain 
conditions.  When  a  city  is  given  complete  and  exclusive  control  over  its 
streets  it  has  been  held  to  be  authorized  to  grant  the  construction  of  railroads 
thereon.4 

A  kinetic  motor,  operated  by  steam  generated  from  water  heated  in  a 
stationary  boiler  and  transferred  to  a  reservoir  under  the  car  and  the  motor, 
is  not  the  locomotive  steam-power  contemplated  by  Laws  of  New  York  1890,  c. 
565,  §  100,  providing  that  a  street  surface  railway  may  not  operate  its  road  by 
locomotive  steam-power.5 

Where  a  company  is  authorized  to  construct  and  operate  a  railroad-track  in 
a  street,  a  court  cannot  restrict  the  number  of  trains  to  be  operated  as  a  con- 
dition precedent  to  the  construction  of  the  track.6 

757.  Liability  of  Municipality  for  Trongful  Acts  of  Railroad  Com- 
pany.— Where  a  city  has  granted  authority  to  a  railroad  company  to  occupy 
the  streets  with  its  road,  the  city  itself  does  not  become  liable  to  abutting 
owners  for  the  injuries  caused  by  such  occupation  even  though  the  grant  was 
made  without  authority.  The  company  may  not  be  regarded  as  an  agent  of 
the  city  in  the  wrong-doing,  and  the  grant  will  be  presumed  to  have  been 
made  on  condition  that  the  company  should  assume  the  responsibility  for  all 

1  Atty. -General  v.  Morris  &  Essex  Ry.       Council  (S.  C.),  32  S.  E.  Rep.  299  [1899]; 
Co.,  19  N.  J.  Eq.  386  [1869].  St.  Paul  v.  Chicago,  etc.,  Ry.  Co.  (Minn.), 

2  Chicago  v.   Illinois  Steel   Co.,  66  111.       63  N.  W.  Rep.    267. 

App.  561.  5  People  v.  Board  of  Railroad  Com'rs, 

8  Millvale,  Appeal  of  (Pa.),  18  Atl.  Rep.  52  N.  Y.  Supp.  908  [1898]. 

993-  6  Kentucky  &  I.  Bridge  Co.  v.  Kreiger 

*  23  Amer.  &  Eng.  Ency.  Law  1092-  (Ky.),  198.  W.  Rep.  738. 

1096,   and  cases  cited ;    Wilkins    v.  Town 


§758.          OPERATIONS  PRELIMINARY    TO    CONSTRUCTION.  $22 

damages  caused  by  its  use  and  occupation  of  the  streets.  Unless  the  wrongful 
acts  are  done  by  direction  of  the  city,  it  does  not  become  liable  for  the  damages 
resulting.  If  the  city  itself  owns  the  fee  of  the  streets,  it  has  been  held  to  be 
entitled  to  compensation  for  the  use  of  them  by  the  railroad  company.  In 
granting  authority  to  construct  tracks  of  a  railroad  in  the  streets,  a  city  may 
exact  certain  requirements  and  conditions  precedent  to  its  consent,  as  that  the 
company  shall  conform  to  the  regulations  of  the  city  authorities  as  to  the  manner 
of  constructing  the  track  or  of  operating  its  trains.  Such  requirements  may 
not  be  imposed  if  the  .railroad  company  has  express  authority  from  the  legisla- 
ture to  occupy  the  streets  without  the  consent  of  the  city.1 

758.  Railroad    Company's    Liability. — After    a   railroad    company    has 
acquired    a    right    to    construct    its    road    upon    the  street,    it    has    complete 
discretion  as  to  the  arrangement  of  matters  of  detail,  such  as  the  exact  location 
of  a  track,  the  gauge  to  be  used,  and  such  similar  details.      In  the  absence  of 
abuse  of  such  discretion  it  will  not  be  interfered  with  by  the  courts.      A  grant 
by  the  legislature  to  a   railroad  company  of  the  right  to   occupy  streets  or 
highways  is  always   subject  to  a  constitutional    provision  protecting  private 
property,   though  just  compensation  shall  be  made  for  any  property  taken  or 
damaged;  and  such  grant  cannot  be  relied  upon  as  affording  the  company  any 
relief  from  liability  to  abutting  owners  for  injuries  caused  by  the  use  of  the 
streets.      This  rule  was  not  strictly  applied  in  the  earlier  cases,  some  of  which 
held  that  the  use  of  the  streets  of  a  city  by  a  steam  railroad  was  a  legitimate 
and  ordinary  use  of  the  highway,  and  that,  like  street  railways,  it  was  merely  an 
improved  means  of  travel  which  was  contemplated  when  the  street  was  origi- 
nally laid  out,  and  that  therefore  no  compensation  should  be  allowed  to  abut- 
ting owners   for  injuries   caused  by  constructing  the  railroad    in   the  street. 
This  unjust  rule  has  been  abandoned  and  a  later  and  better  doctrine  adopted 
in  most  states — that  steam  railroads  are  an  additional  burden  upon  a  highway, 
and  that  the  occupation  of  a  street  by  a  railroad  is  a  taking  of  the  property  of 
the  owner  of  the  fee  of  such  street.      If  the  company  has  paid  for  the  right  to 
complete  one  track  along  the  street,  it  must  pay  further  compensation  when  it 
builds  another  track,  which  is  held  to  constitute  an  additional  burden  upon 
theftreet.2* 

759.  Abutting  Owners  have  Right  to  Unobstructed  Street. — One  who 
purchases  a  railway  located  upon  the   street   acquires  no  rights  except  those 
possessed  by  the  original  company,  and  such  purchaser  becomes  liable  for 
injuries  to  abutting  property  which  arise  from  the  unlawful  occupation  of  the 
street.      The  earlier  cases  held,  also,  that  where  the  abutting  owners  did  not 
own  the  fee  of  the  street,  but  it  was  vested  in  the  public  or  in  the  city  in  trust 
for  the  public  use,  no  recovery  could  be  had  for  the  occupation  of  the  street 

*23  Amer.  &  Eng.  Ency.  Law  1098.  2  23  Amer.   &   Eng.    Ency.   Law  noo- 

1105. 

*  See  Sec.  717,  supra. 


523  RIGHT   OF    WA  Y   OF  RAILROAD. 

by  the  railroad.1  Under  such  ruling  it  was  held  that  an  abutting  owner  whose 
title  extended  over  to  the  middle  of  the  street  had  no  cause  of  action  against 
a  railroad  company  whose  road  was  built  wholly  upon  the  opposite  side.  In 
numerous  jurisdictions  this  rule  is  still  recognized  and  applied.  Such  a  rule 
could  not  be  based  upon  well-defined  principles  of  the  common  law.  The 
rights  of  private  parties  in  public  streets  are  upheld  by  the  common  law. 

The  weight  of  later  authorities  seems  to  repudiate  such  a  doctrine  as  un- 
sound. The  best  decisions  of  to-day  protect  an  abutting  property  owner 
against  the  appropriation  of  the  street  by  railroad  companies,  without  regard  to 
whether  the  fee  is  owned  by  him  or  not.  Even  if  the  fee  be  in  the  city, 
county,  or  state,  it  is  merely  held  in  trust  for  the  public  use  as  a  street  and 
for  no  other  purpose  ;  and  if  the  proper  use  of  the  street  is  diverted  to  any 
other  use,  whereby  a  landowner  is  deprived  of  his  right  of  access  over  the 
street,  then  the  constitutional  provision  against  the  taking  of  private  property 
without  compensation  is  violated.  Upon  this  ground  it  has  been  held  that 
where  the  state  owns  the  fee  of  the  street  its  consent  that  the  railway  company 
may  use  such  street  merely  relieves  the  company  from  liability  for  a  public 
nuisance,  but  that  the  company  is  liable  to  abutting  owners  for  injuries  caused 
by  the  construction  and  operation  of  the  railroad.  This  law  is  supported  also 
by  the  rights  of  the  abutting  owner  to  an  easement  of  access  and  egress  over 
the  street,  which  rights  are  pertinent  to  his  property.  If  these  easements  are 
interrupted  by  the  construction  and  operation  of  the  railroad,  damages  may 
be  recovered  therefor.2 

The  owner  of  the  fee  in  lands  abutting  upon  or  constituting  a  part  of  a 
public  country  road  is  entitled  to  equitable  relief  for  injuries  or  obstructions  of 
a  special  or  distinct  character  from  those  sustained  by  the  general  public,  aris- 
ing from  the  use  of  any  part  of  it  for  an  unanticipated  purpose,  and  where 
access  to  and  use  of  the  way  are  made  dangerous  or  inconvenient  by  a  trespass 
of  a  continuing  and  permanent  character.3 

A  railroad  company  whose  road  ran  across  plaintiff's  lots  and  permanently 
obstructed  a  public  street  upon  which  the  property  abuts,  at  a  distance  of  several 
hundred  feet  from  the  premises,  was  held  liable  to  the  owner  for  the  damages 
sustained  by  reason  of  the  closing  of  the  street,  notwithstanding  the  condemna- 
tion proceedings  to  condemn  the  lots  for  a  right  of  way.4 

The  decided  weight  of  authority  of  the  recent  cases,  as  collected  in  the 
American  and  English  Encyclopaedia  of  Law,  is  in  support  of  this  doctrine. 
The  correct  rule,  as  therein  declared,  is  "  that  whether  or  not  an  owner  of 
abutting  property  is  the  owner  of  the  fee  of  the  street,  he  nevertheless  has  the 

1  Case  v.  Cayuga  Co.  (Sup.),  34  N.  Y.  Dist.  R.  269. 

Supp.  595.  *Atchison    &    N.    R.    Co.    v.    Boerner 

'23  Amer.   &    Eng.   Ency.   Law    1105-  (Neb.),  51  N.  W.  Rep.  842;  Syracuse  S.  S. 

1108.  Co.  v.   Rome,  etc.,  R.   Co..  67  Hun  161; 

'Philadelphia  &  T.  R.  Co.  v.  Philadel-  Wright  v.  Syracuse,  etc.,  Ry.  Co.  (Sup.), 

phia  &  B.  Pass.  Ry.  Co.  (Corp.  PL),  6  Pa.  36  N.  Y.  Supp.  901. 


§7^0.    OPERATIONS  PRELIMINARY  TO  CONSTRUCTION. 

right  to  insist  that  he  be  not  deprived  of  his  rights  of  light,  air,  and  of  access 
over  the  street,  or  materially  injured  in  his  use  of  them  ;  that,  since  a  road  con- 
structed along  a  street  is  an  additional  burden  thereon  and  a  new  use  thereof, 
and  the  operation  of  fast  and  heavy  trains  with  their  annoying  accompaniments 
of  smoke,  cinders,  and  gases,  together  with  the  impediment  of  free  access 
caused  by  the  track,  is  a  detriment  to  property,  each  owner  has  the  right  to 
recover  of  the  railroad  company  damages  for  injuries  caused  by  such  structure 
and  operation." 

Such  rights  of  abutting  owners  may  be  assigned  to  the  railroad  company  or 
may  be  expressly  or  impliedly  waived,  and  in  such  case  the  abutting  owner  has 
no  cause  of  action  except  when  the  company  has  been  guilty  of  an  unlawful  or 
negligent  exercise  of  its  authority. 

In  determining  the  proper  and  legitimate  use  of  the  street  or  highway  by  a 
railroad  company  and  the  general  rights  of  abutting  owners  to  compensation, 
the  ownership  of  the  fee  may  very  properly  be  considered  in  determining  the 
amount  of  damages  to  be  assessed.  If  the  abutter  does  not  own  the  fee,  then 
he  suffers  no  injury  except  the  interference  with  his  easement  of  light,  air,  and 
access;  but  if  he  own  the  fee,  then  he  surfers  in  addition  the  extra  burden  which 
is  imposed  upon  his  land. 

760.  Statutes  in  Regard  to  Steam  Railroads  on  Streets. — In  New  York 
it  is  held  that  where  the  fee  of  the  street  is  in  the  public,  the  legislature  may 
authorize  the  construction  of  a  steam  railroad  upon  the  street,  and  that  the 
abutting  owner  has  no  right  of  recovery  for  damages  which  result  from  the 
proper  exercise  of  this  lawful  authority.  If  the  fee  be  in  the  abutting  owner, 
the  occupation  of  the  street  is  considered  a  taking  of  property  for  which  such 
owner  may  recover.  In  1874  a  constitutional  amendment  was  adopted  which 
forbids  the  passage  of  laws  authorizing  the  construction  or  operation  of  a  street 
railroad  unless  the  consent  of  the  bwners  of  one-half  the  value  of  the  property 
on  the  street  be  first  obtained,  which  constitutional  amendment  has  greatly 
modified  the  rule  in  regard  to  railroads  upon  streets  and  highways  in  the  State 
of  New  York.  No  distinction  has  been  made  between  street  railroads  and  ordi- 
nary steam  railroads,  the  question  being  whether  or  not  the  construction  and 
operation  of  the  road  actually  interferes  with  the  easements  of  the  abutting 
owners.  The  New  York  courts  have  refused  to  apply  the  same  doctrine  to  sur- 
face roads  that  it  has  applied  to  elevated -rail  way  cases,  and  this  has  been  the 
subject  of  adverse  comment.1 

There  is  no  well-settled  rule  applicable  in  all  the  States  as  to  whether  dam- 
ages may  be  recovered  by  abutting  owners  when  they  do  not  own  the  fee  of 
the  street.  In  some  States  the  rule  has  been  modified  and  secondary  considera- 
tions, such  as  the  change  of  the  grade  of  the  street  or  the  excessive  or  unlawful 
use  of  the  street,  have  been  made  the  test.  In  California,  Colorado,  Con- 
necticut, Arkansas,  District  of  Columbia,  Florida,  Georgia,  Illinois,  Missis- 
1  23  Amer.  &  Eng.  Ency.  Law  1112,  1113. 


525  RIGHT  OF    WA  Y  OF  KAILKOAD.  §  762. 

sippi,  and  Nebraska  damages  have  been  allowed  the  abutting  owners,  even 
though  they  did  not  own  the  fee  of  the  street,  for  the  injuries  suffered  by  the 
use  and  occupation  of  the  street.1 

761.  Liability  for  Injury  to  Abutting  Estates. — In  some  states  laws  have 
been  passed  which  give  to  abutting  owners  the  right  to  recover  damages  for  all 
injuries  sustained  by  them  in  relation  to  their  property  by  reason  of  the  con- 
struction and  operation  of  a  railroad  upon  the  streets.      In  some  cases  these 
statute  laws  merely  give  the  rights  which  the  courts  have  established  in  their 
jurisdictions.     Such  statutes  have  been  held  to  give  abutting  owners  the  right 
of  recovery  even  though  enacted  when  the  railroad  company  had  completed 
the  construction  of  its  roadbed  but  had  not  laid  down  its  tracks.     Recovery 
is  limited  in  such  cases  to  that  provided  for  by  the  statute.     Such  laws  do  not 
apply  to  cases  where  the  railroad  merely  crosses  the  street. 

If,  in  constructing  the  railroad,  the  grade  of  the  street  is  changed,  or  embank- 
ments are  built,  or  cuts  made  in  the  streets,  and  if  such  changes  interfere  with 
the  abutting  owner's  easement  of  access  to  and  from  his  property,  then  the 
company  is  liable  as  for  a  taking  of  private  property.  In  some  cases  it  has 
been  argued  that  the  city  has  a  right  to  change  the  grade  of  its  streets  without 
making  compensation  for  injuries  suffered,  and  that  therefore  it  may  delegate 
such  right  to  a  railroad  company  so  that  the  latter  can  accept  its  ordinary  lia- 
bility. Such  a  contention,  however,  has  not  been  sustained,  because  in  the 
one  case,  where  the  city  has  the  right  to  change  the  grades,  the  damages  suffered 
are  for  the  public  benefit,  while  in  the  other  case  .the  changes  are  made  for  the 
advancement  of  the  interest  of  a  private  corporation.  The  right  to  occupy  a 
street  has  been  held  to  convey  no  authority  to  alter  the  grade  unless  such  an 
authority  is  specially  granted. 

762.  Measure   of  Damages  to    Abutting   Property. — The    measure   of 
damages  to  abutting  property  is  the  actual  diminution  in  the  market  value  of 
the    premises  for  any  use  to  which    they  may  reasonably  be  put.      Injuries 
which  are  occasioned  by  the  construction  and  operation  of  the  railroad,  and 
which  annoy  and  damage  the  plaintiff  only  in  common  with  the  rest  of  the 
public,  are  not  to  be  considered  unless  the  occupation  of  the  street  is  wrongful 
and  without  authority  of  law.      The  injury  sustained  must  differ  in  character 
as  well  as  in  degree  from  that  suffered  by  the  public  in  general.      In  determin- 
ing the  injury  to  its  use  the  same  considerations  may  be  regarded  as  in  the 
sale  of  such  property  between  private  parties.      In  an  action  by  lessee  the  only 
damages  recoverable  will  be  the  difference  between  the  value  of  the  premises 
before  and  after  the  road  is  built.      Where  the  abutting  owner  has  no  right  of 
recovery  except  in  cases  where  there  has  been  an  abuse  or  unlawful  exercise 
of  authority  the  measure  has  been  held  to  be  the  compensation  for  the  injury 
suffered,  and  not  to  embrace  the  decreased  value  of  the  property.     In  such 
case  it  is  not  presumed  that  the  wrong  will  continue,  and  therefore  in  an 

1  23  Amer.  &  Eng.  Ency.  Law  1113-1120. 


§763.          OPERATIONS  PRELIMINARY    TO    CONSTRUCTION.  526 

action  at  law  only  such  damages  as  have  accrued  at  the  time  of  the  action  are 
recoverable. 

763.  Benefits  to  Property  from  Railroads. — The  benefits  to  a  part  of  a 
tract  of  land  not  taken  cannot  be  considered  in  determining  the  compensa- 
tion to  be  allowed  in  ordinary  proceedings.  In  several  states  statutory  or 
constitutional  provisions  prohibit  any  considerations  of  such  benefits.  How- 
ever, in  cases  arising  from  the  occupation  of  streets  by  railroad  companies 
these  statutory  and  constitutional  provisions  have  no  application.  In  these 
cases  there  is  merely  an  appropriation  of  easements  appurtenant  to  the  land, 
and  the  value  of  these  easements  can  be  determined  only  by  estimating  the 
value  of  the  land  with  or  without  them.  If  the  interruption  of  the  easement 
has  resulted  in  an  increased  value  of  the  land  to  which  they  are  appurtenant, 
or  if  it  has  not  affected  the  value  at  all,  then  the  abutting  owner  has  no  right 
to  anything  more  than  nominal  damages.  The  rule  has  therefore  been  stated 
to  be  that  in  the  cases  under  consideration  benefits  to  abutting  land  arising 
from  the  existence  of  the  railroad  are  to  be  considered  in  estimating  the 
damages  recoverable  by  the  owner.  The  abutting  owner  must  show  that  he 
has  suffered  special  injury  from  the  occupation  of  the  street.  When  there  has 
been  no  appropriation  of  property,  but  the  only  injury  is  the  danger,  annoy- 
ance, and  inconvenience  which  everybody  who  uses  the  streets  surfers  in  the 
same  degree,  then  the  abutting  owner  has  no  cause  of  action.  This  rule 
should  not  be  misapplied,  for  it  relates  to  the  right  of  the  plaintiff  as  one  of 
the  general  public  having  a  right  of  passage  over  the  street,  and  does  not  apply 
to  his  right  as  owner  of  the  fee  or  of  an  easement  in  the  street.  Special 
damages  must  differ  from  that  sustained  by  the  general  public  both  in  degree 
and  in  kind,  and  the  abutting  owner  must  establish  injuries  different  in  their 
legal  charater  from  those  suffered  by  the  public  generally.1 

An  abutting  owner  must  object  to  the  occupation  of  the  street  within  a 
reasonable  time.  If  he  stand  by  without  objection  until  the  Yights  of  third 
parties  or  of  the  public  have  intervened,  he  cannot  then  maintain  an  ejectment 
or  insist  upon  an  injunction,  though  it  has  been  held  that  he  might  still  main- 
tain an  action  for  damages,  his  recovery  being  limited  to  such  damages  as  had 
accrued  prior  to  the  institution  of  the  action  and  within  the  statutory  period 
of  limitation,  if  the  injury  be  of  a  temporary  character;  but  if  the  trespass  is 
a  permanent  one,  all  damages  may  be  recovered  in  a  single  action. 

The  right  of  action  for  damages  is,  it  seems,  in  the  party  owning  the 
abutting  lot  at  the  time  of  the  occupation  of  the  street,  and  it  does  not  pass  to 
subsequent  purchasers.  One  who  purchases  a  lot  after  the  road  has  been 
constructed  is  held  to  take  full  notice  of  the  rights  acquired  by  the  railroad 
company  and  of  the  injury  to  the  property.  An  abutting  owner  of  two  con- 
tiguous lots  may  have  damages  assessed  to  both  lots  together,  yet  they  may 
not  have  been  so  used  by  the  owner  in  connection  with  each  other.  In  one 
1  23  Amer.  &  Eng.  Ency.  Law  1123-1128. 


RIGHT   OF    WAY    OF  RAILROAD.  §7^5- 

case  it  was  held  that  a  recovery  for  damages  to  one  lot  was  a  bar  to  an  action 
for  similar  damages  to  another  lot  on  the  same  street  when  the  lots  were  the 
property  of  the  same  person,  but  were  not  contiguous. 

764.  Injuries  to  Abutting  Owners  from  Elevated  Railways  in  Streets. — 
The  construction  and  operation  of  an  elevated  railroad  is  a  trespass  against 
abutting  property  owners,  and  damages  are  recoverable  by  such  abutters  for 
any    injury    or    inconvenience    whatever    which    results    to    them    from    the 
structure  itself  or  from  uses  incidental  to  it.     The  smoke  and  gases  and  the 
ashes  and  cinders  from  an  elevated  railroad  impair  the  easement  of  air  to  the 
abutting  owner.     The  structure  itself  and  the  passage  of  cars  lessen  his  ease- 
ment of  light,  and  the  dripping  of  oil  and  water  and  the  many  columns  which 
support  the  structure  interfere  with  his  convenience  of  access.     They  are  each 
and  all  elements  of  damage,  even  though  they  are  a  necessary  phase  of  the 
construction  and  operation  of  the  road  and  are  not  the  result  of  negligence.1 

Mere  noise  may  be  a  nuisance,  and  smoke  and  vibration  of  machinery 
aggravate  such  nuisance,  and  the  fact  that  others  in  the  same  vicinity  are  in 
like  manner  incommoded  is  no  answer  to  an  action  by  an  injured  party.2 

765.  Property  Rights  may  Not  be  Destroyed  or    Impaired  by  Legis- 
lative   Action. — Direct  legislation  which  would    enable    the    state   to   take 
property  which  was  the  subject  of  a  grant  in  a  charter  of  a  railroad  company 
or  acquired  under  it  would  be  unconstitutional,  and  such  authority  obtained 
through    a  reservation   would  be   equally  so.3     Personal    and   real    property 
acquired  during  the  lawful  existence  of  a  corporation,  rights  of  contract  or 
choses  in  action  so  acquired,  and  which  in  their  nature    depend  upon  the 
general  powers  conferred  by  the  charter,  are  not  destroyed  by  repeal,  and  the 
courts  may, 'if  the  legislature  does  not  provide  some  special  remedy,  enforce 
such   rights   by  the  means  in   their  power.4     No  act  of  the  legislature  can 
impair  the  obligation  of  contracts  or  establish  such   rules  in   regard  to  the 
enjoyment   and    disposition   of   companies'    assets   as    shall    divert    them    or 
unfairly  and  unequally  divide   them  among  the  creditors.5     When  under  a 
charter  certain  rights  have  been  acquired  and  have  become  vested,  no  amend- 
ment or  alteration  of  the  charter  can  take  away  the  property  or  the  rights  which 
have  become  vested  under  a  legitimate  exercise  of  the  powers  granted.6     Even 
when  the  privilege  is  revocable  the  benefits  received  from  it  before  its  repeal 
are  vested  rights,  and  the  corporation  cannot  be  deprived  of  them.7 

1  Druckerz/.  Manhattan  Ry.  Co.  (N.  Y.),  4  Greenwood  v.   Freight  Co.,  105  U.  S. 
12  N.  E.  Rep. 568  [1887];  Hinez/.  N.Y.  El.        13, 

R.  Co.,  36  Hun  293  [1885].     But  see  Mat-  5 Sinking  Fund  Cas.,  99  U.  S.  700. 

ter    of    N.     Y.  El.    R.    Co.,   36    Hun    427  6  Commonwealth  v.  Essex  Co.  (Mass.), 

[1885].  13  Gray  239. 

2  Curran  v.  McGrath,  67  111.  App.  566.  7  Covington,  etc.,  R.  Co.  v.  Kenton  Co. 
But  see  Philips  v.  Phila.  &  R.  T.  R.  Co.  Ct.  (Ky.),  12    B.    Mon.   144;    Baltimore, 
<Pa.),  39  Atl.  Rep.  298  [1898].  etc.,  R.  Co.  v.   Nesbit,  10  How.  (U.  S.) 

3  8  Amer.  &  Eng.  Ency.  Law  633.  395. 


CHAPTER   XXXVIII. 

RIGHTS   OF    WAY   OF   STREET   RAILWAY. 

781.  Street  Railway  Not  an  Additional  Burden  upon  Streets. — It  is 
pretty  well  established  that  the  building  of  a  street  railway  on  the  streets  of  a 
city  or  village  and  the  running  of  cars  for  the  transportation  of  passengers  do 
not  constitute  an  additional  burden  on  the  land,  but  are  uses  contemplated 
when  the  street  was  located,  and  that  therefore  an  abutting  owner  may  not 
maintain  an  action  for  damages  to  his  property  resulting  from  the  construction 
and  operation  of  such  railway,  even  though  he  own  the  fee  of  the  street, 
except  in  cases  where  he  can  show  that  he  has  suffered  some  special  and 
material  injury.1 

This  doctrine  is  denied  in  the  state  of  New  York  in  cases  where  abut- 
ting owners  own  the  fee  of  the  street.  The  courts  of  that  state  have  held 
that  "the  use  of  a  railroad  no  matter  how  it  is  operated,  whether  by  horse-  or 
steam-power,  necessarily  includes  to  a  certain  extent  an  exclusive  occupation 
of  a  certain  part  of  the  highway  for  the  tracks  of  the  road  and  the  running  of 
its  cars,  and  the  permanent  occupation  of  the  soil."  It  also  requires  that  all 
other  parties  stand  aside  and  make  way  for  its  progress.  This  is  clearty  incon- 
sistent with  the  legal  object  and  design  of  a  highway,  which  is  entirely  free 
and  open  to  all  for  the  purposes  of  travel  and  transportation.2 

Where  a  city  brought  an  action  to  recover  compensation  it  was  held  that 
the  appropriation  of  the  streets  by  the  legislative  authority  for  the  use  of  a 
street  railway  was  not  a  taking  of  private  property  which  would  require  com- 
pensation to  the  city,  though  it  owned  the  fee  of  the  streets.  If  the  exclusive 
ownership  of  the  streets  is  in  the  city,  the  general  rule  that  abutting  owners 
can  have  no  right  to  compensation  is  applied  even  in  New  York. 3 

This  general  doctrine  of  no  compensation  cannot  be  applied  so  rigidly  as 
to  exclude  all  right  to  claim  damages.  If  the  abutting  owner  can  show  that 
he  has  suffered  some  special  and  material  injury  in  the  matter  of  access  to  his 
property,  he  is  entitled  to  recover  compensation.  A  street  railway  built  solely 

123  Amer.  &  Eng.  Ency.  Law  954.  3  Kellinger  v.  42d  St.  R.  Co.,  50  N.  Y. 

2  Craig  v.  Rochester  City  R.  Co.,  39  N.       206;  Kane  v.  N.  Y.  El.  R.  Co.,  125  N.  Y. 
Y.  404;  Story  v.  N.  Y.  El.  R.  Co.,  90  N.  Y.       186;  23    Amer.  &  Eng.  Ency.  Law  956. 

£22. 

528 


529  RIGHTS   OF   WAY  OF  STREET  RAILWAY.  §  783. 

for  the  purpose  of  transferring  freight  between  two  steam  railroads  was  held 
an  additional  burden  to  the  street. x  Embankments  raised,  or  cuts  made,  or 
the  grade  of  the  street  materially  changed,  may  make  an  additional  burden 
for  which  compensation  to  abutting  owners  will  be  required.2 

In  Michigan,  Massachusetts,  and  Rhode  Island  statutory  provisions  have 
been  made  requiring  compensation  to  be  made  to  abutting  owners. 

782.  The  Right  to  Use  Streets  for  Rights  of -Way. — The  right  of  any 
company  to  use  the  streets  of  a  city  for  its  tracks,  pipe-lines,  or  telegraph  and 
telephone  lines  is  possessed  by  virtue  of  its  franchise  granted  by  the  legislature 
or  of  a  license  from  the  city,  and  this  right  is  subject  to  the  limitations  of  the 
grant  of  the  franchise  or  license,  and  to  the  inherent  rights  of  the  city  to 
control  and  regulate  its  streets  so  far  as  it  may  be  necessary  to  preserve  them 
for  the  free  use  of  the  public.3 

783.  Obligation  to  Keep  Street   Unobstructed.— A  railway  company  is 
bound  to   construct  and  maintain  its  road  so  that  the  full  use  of  the  entire 
street  by  the  public  shall  not   be  materially   impaired.      If  injury  result  by 
reason  of  failure  to  so  construct  and  repair  its  tracks,  then  the  company  will 
be  held  liable  for  damages  suffered.     The  company,  however,  is  not  obliged 
to  keep  that  part  of  the  street  occupied  by  it  in  the  same  state  of  improve- 
ment as  the  city  may  keep  the  remainder  of  the  street.     The  company  shares 
the  burden  and  expense  of  improving  the  highway  with  the  rest  of  the  public. 

In  many  instances,  however,  the  duty  is  imposed  upon  the  company  by  its 
charter  or  by  conditions  annexed  to  the  franchise  to  keep  in  repair  all  that 
part  of  the  street  occupied  by  it,  and  for  a  certain  distance  on  each  side. 
Sometimes  it  is  provided  that  the  company  shall  maintain  the  whole  street. 
When  a  railroad  company  has  covenanted  with  the  city  as  a  consideration  for 
its  franchise  that  it  will  keep  the  street  or  any  part  thereof  over  which  its  track 
passes  in  repair,  it  assumes  the  obligation  owing  from  the  city  to  the  public 
in  respect  to  that  part  of  the  street,  and  is  therefore  liable  for  personal  injuries 
arising  from  defects  in  such  street.  In  some  instances  the  duty  to  repair  is 
imposed  by  ordinances  and  statutes  passed  subsequent  to  the  grant  of  the 
charter,  but  the  effect  of  such  ordinances  and  statutes  must  not  be  to  impair 
the  obligation  of  the  charter  contract.  Whether  or  not  a  requirement  by  the 
city  as  to  paving  or  repairing  amounts  to  an  impairment  of  the  obligation  of 
the  contract  is  a  question  about  which  the  authorities  have  not  laid  down  an 
absolute  rule,  and  the  same  holds  true  with  regard  to  the  exact  effect  of  the 
reserved  right  of  the  legislature  or  municipality  to  amend  or  repeal  th^e  charter. 

By  virtue  of  the  power  of  police  regulation  a  state  may  pass  ordinances 
requiring  a  company  to  keep  in  repair  a  part  of  the  street  occupied  by  it,  but 
such  ordinances  must  be  reasonable.  When  the  company  is  obliged  to 
improve  or  repair,  it  has  been  held  that  the  city  should  judge  of  the  necessity 

1  Carli  v.  Stillwater  St.  R.  Co.,  28  Minn.  2  23  Amer.  &  Eng.  Ency.  Law  957. 

373.  3  23  Amer.  &  Eng.  Ency.  Law  947. 


§784.          OPERATIONS  PRELIMINARY    TO    CONSTRUCTION.  5 30 

of  repair  or  improvements  in  any  case.  This  discretion,  however,  must  be 
exercised  in  a  reasonable  manner.1 

The  usual  rules  of  interpretation  are  adopted  in  construing  the  provisions 
of  the  charter  or  of  an  ordinance  respecting  obligations  of  a  street  railway 
company.  Since  the  common-law  duty  to  repair  does  not  require  a  company 
to  improve  the  streets,  so  the  provision  of  its  charter  requiring  it  to  repair  the 
street  does  not  make  it  liable  for  improvements.  A  company  must  not  only 
restore  the  street  to  the  same  condition  as  before  the  track  was  laid,  but  it 
must  maintain  the  road  in  such  a  state  that  the  full  use  of  the  highway  shall 
not  be  interfered  with. 

If  the  company  fails  or  refuses  to  perform  its  duty  to  maintain  the  street 
or  restore  it,  the  city  may  after  due  notice  cause  such  repairs  to  be  made  and 
compel  the  company  to  pay  for  them/  This  remedy  is  most  often  pursued. 
Mandamus  may  lie  to  enforce  the  performance  of  such  duties. 

784.  Priority  in  Occupying  Streets. — In  New  York  it  has  been  held  that 
the  construction  of  a  road -in  a  street  gives  no  exclusive  right;  that  one  com- 
pany cannot  prevent  another  one  from  first  laying  its  tracks  in  the  street  in 
question ;  and  that  if  the  acts  of  the  other  company  amount  to  a  public  nui- 
sance or  an  obstruction  of  the  way,  it  is  for  the  public  and  not  for  the  other 
company  to  complain. 

Where  there  are  two  or  more  companies  which  have  a  right  to  lay  tracks 
in  a  street  which  can  only  be  occupied  by  one,  the  company  which  in  good 
faith  first  procures  the  construction  of  its  road  acquires  a  right  of  way  superior 
to  that  of  others  coming  later.2 

A  company  must  act  entirely  within  the  authority  of  its  charter,  for  it  has 
been  held  that  one  authorized  to  build  a  cable  road  only  acquires  no  right  by 
commencing  to  build  a  horse-  or  an  electric-road,  and  that  if  another  company 
in  good  faith  afterwards  begins  the  construction  of  a  road  authorized  by  its 
charter,  the  latter  company  is  entitled  to  an  injunction  against  the  first  one.3 

A  bridge  over  a  stream  of  water,  and  connecting  streets  on  each  side,  con- 
stitutes a  part  of  the  street,  and  authority  to  operate  a  railroad  over  the  bridge 
is  not  affected  by  the  destruction  of  the  bridge  and  the  erection  of  a  new  one 
in  its  place.4 

785.  Rights  of  Street  Railway  in  Street  to  the  Exclusion  of  Others. — 
A  street-railway  company  has  been  held  to  have  no  such  exclusive  right  to  the 
use  of  its  tracks  and  the  ground  covered  by  them  as  exists  in  the  case  of  an 
ordinary  company,  but  it  is  entitled  to   use  it  only  in  common  with  others 
traveling  on  the  highway.      Yet  it  has  some  rights  which  are  superior  to  those 
of  other  parties.     A  street-railway  company  has  the  right  of  way  over  other 

1  23  Amer.  &  Eng.  Ency.  Law  986,  987.  4  Floyd  v.  Rome  St.  R.  Co.,  77  Ga.  614. 

2  23    Amer.    &     Eng.    Ency.    Law    947;       And  see  Pittsburg,   etc.,   R.  Co.  v.  Point 
Elliott  on  Roads  and  Streets  570.  Bridge  Co.   (Pa.),   22  Pittsb.   L.  J.  N.  S. 

8  Indianapolis  St.  R.  Co.  v.  Citizen's  St.       367. 
R.  Co.,  127  Ind,  369. 


S31  RIGHTS   OF    WAY   OF  STREET  RAILWAY.  §786. 

vehicles  on  the  street  and  may  require  them  to  turn  out  and  make  way  for  its 
cars,  and  it  may  recover  damages  for  injuries  caused  by  the  failure  to  respect 
this  right.  It  may  by  injunction  restrain  dther  parties  from  such  a  constant 
use  of  its  tracks  as  shall  materially  interfere  with  the  use  of  its  road.  At 
points  where  a  highway  crosses  the  track  the  rights  of  the  street  railway  have 
been  held  to  be  in  no  way  superior  to  those  of  other  parties  crossing  the  high- 
way, and  the  rights  and  duties  of  both  parties  are  governed  by  the  ordinary 
law  of  the  road.1 

Under  a  power  reserved  to  alter,  amend,  or  repeal  the  charter  of  a  street- 
railway  company  the  legislature  may  authorize  another  company  to  use  its 
tracks.  In  some  cases  it  has  been  held  that  a  city  can  do  so.  One  company 
may  acquire  the  right  to  use  the  tracks  of  another  by  the  exercise  of  the  right 
of  eminent  domain.  In  every  such  case  compensation  must  be  made  to  the 
company  whose  tracks  are  used  or  condemned,  and  the  method  authorized  by 
the  legislature  must  be  pursued  in  determining  that  compensation.  It  may 
not  be  arbitrarily  fixed  by  the  city. 

In  the  absence  of  authority  acquired  by  the  means  just  mentioned  one 
company  has  no  right  to  use  the  tracks  of  another  company  without  its  con- 
sent, and  may  be  prevented  from  doing  so  by  injunction.  A  law  forbidding 
a  street-railway  company  to  lease  its  rights  or  franchises  to  other  companies 
or  to  operate  parallel  lines  has  been  held  not  to  preclude  such  companies  from 
building  tracks  for  the  partial  use  of  their  respective  routes  outside  of  that 
zone  in  which  they  are  parallel. 

786.  Power  of  Municipal  Corporations  to  Grant  a  Right  of  Way, — A 
municipal  corporation  holds  the  control  and  use  of  its  streets  in  trust  for  the 
public  benefit,  and  unless  clearly  authorized  by  a  valid  legislative  enactment 
it  cannot  surrender  or  delegate  these  rights  to  private  persons  or  corporations 
by  contract.2  An  ordinance  has  been  declared  void  which  granted  to  a  com- 
pany a  right  to  construct  a  street  railway  for  an  unlimited  period  of  time  and 
without  reserving  the  power  of  revocation.  Such  an  ordinance  would  be  void 
as  a  delegation  of  powers  which  are  a  public  trust,  and  which  in  the  absence 
of  expressed  authority  are  not  alienable. 

Such  an  ordinance  differs  from  a  mere  license,  which  is  in  its  nature 
revocable  and  subject  to  the  regulation  and  control  of  the  city.  A  license 
and  a  franchise  have  been  distinguished.  A  franchise  has  been  held  to  be  a. 
contract  which  must  emanate  from  the  sovereign  power  of  the  state,  and  which 
cannot  be  granted  by  the  city  unless  the  power  to  do  so  has  been  clearly  and 
specifically  granted.  This  distinction  is  made  in  several  leading  cases,  and 
the  grant  of  an  exclusive  right  has  been  held  void  as  being  an  attempt  on  the 
part  of  the  municipality  to  grant  a  franchise.3 

Authority  is  usually  conferred  upon  cities  to  grant  the  use  of  the  streets 

1  23  Amer.  &  Eng.  Ency.  Law  992-998.  8  23  Amer.  &  Eng.  Ency.  Law  948,  and 

2  23  Amer.  &  Eng.  Ency.  Law  948.  8  Id.  585. 


§  787-          OPERATIONS  PRELIMINARY   TO    CONSTRUCTION.  S32 

for  purposes  of  rights  of  way  for  public  improvements,  but  such  grants  must 
be  confined  to  the  reasonable  exercise  of  such  a  power;  and  such  authority 
cannot  be  extended  to  authorize  an  individual  to  construct  a  private  railway 
across  or  on  the  street  for  his  own  particular  benefit,  nor  can  it  grant  the  use 
of  streets  to  so  many  companies  that  they  will  be  virtually  closed  to  public 
travel. 

If  a  special  authority  to  the  particular  company  named  to  occupy  certain 
streets  be  invalid  on  constitutional  grounds,  it  is  absolutely  void  and  may  not 
be  given  a  general  effect  so  as  to  inure  to  the  benefit  of  another  company 
having  a  prior  charter  for  the  streets  named.1 

When  a  city  has  merely  exceeded  its  powers  in  granting  its  streets  to  a 
company,  the  legislature  may  confirm  its  action  and  render  the  privilege 
granted  a  valid  one,  but  not  if  the  grant  was  unconstitutional.2 

When  parks,  squares,  or  grounds  have  been  dedicated  to  the  public  for 
purposes  of  public  enjoyment  and  recreation,  neither  the  legislature  nor  the 
city  has  power  to  authorize  a  right  of  way  over  them  for  a  street  railway. 
Such  a  right  of  way  may  be  granted  if  such  parks  and  squares  belong  exclu- 
sively to  the  city.3  An  abutting  owner  has  no  such  interest  in  the  street  as 
will  enable  him  to  enjoin  its  use  for  a  street  railway.4 

787.  Consent  of  Municipal  Authorities  to  Occupy  Streets. — In  many 
states  it  is  necessary  to  obtain  the  consent  of  the  city  whose  streets  are  to  be 
occupied  before  the  legislature  may  grant  a  franchise  to  construct  and  operate 
a  street  railway.  In  such  cases  the  consent  required  is  absolutely  essential. 
Such  conditions  imposed  by  the  constitution  upon  the  legislature  do  not 
preclude  the  legislature  from  imposing  other  conditions  which  are  not  incon- 
sistent with  those  stipulated.  Therefore,  when  the  consent  of  the  city 
authorities  is  necessary,  the  latter  are  not  limited  to  merely  granting  or 
denying,  but  they  may  in  their  discretion  prescribe  certain  other  conditions  on 
which  they  will  give  the  franchise  if  such  conditions  be  not  repugnant  to  the 
grant  by  the  legislature  or  to  the  constitutional  or  statutory  provisions  on  the 
same  general  subject.5  The  fact  that  the  company  will  be  subject  to  great 
inconvenience  and  large  expense  in  order  to  provide  the  conditions  stipulated 
is  not  a  sufficient  excuse  for  non-performance.6  A  common  condition 
required  of  companies  that  desire  to  occupy  the  streets  is  that  they  shall 
obtain  the  consent  of  the  city  or  the  abutting  owners,  or  of  both,  and  that  the 
improvements  shall  be  completed  within  a  specified  time.  Other  conditions 
imposed  and  enforced  are  that  the  consent  of  other  companies  already  occupy- 
ing the  street  shall  be  obtained  before  the  new  improvements  shall  be  under- 

1  Larimer,  etc.,  St.   R.    Co.  v.   Larimer       111.  App.  446. 

St.  R.  Co.,  137  Pa.  St.  533.  52  Dill.  Munic.  Corp.  (4th  ed.),  §  706. 

2  23  Amer.  &.  Eng.  Ency.  Law  950.  6  St.  Joseph  Co.  v.  South  Bend,  etc., 

3  17  Amer    &  Eng.  Ency.  Law  418,  and  R.  Co.,  118  Ind.  68.     And  see  People  v. 
15  Id.  1055;  2  D1H.     Munic.  Corp.,  §650,  Broadway  R.  Co  ,  126  N.  Y.  29.     See  also 
651.  People  v.  Chic.  W.  Div.  R.  Co.,  118  111. 

*  Stewart  v.  Chicago  G.  St.  Ry.  Co.,  58       113. 


533  RIGHTS   OF   WAY  OF  STREET  RAILWAY.  §  787. 

taken,  or  that  the  property  of  a  certain  other  company  which  has  a  franchise 
for  a  like  business  shall  be  first  purchased  or  acquired. l 

The  control  of  all  streets  and  highways  is  in  the  legislature,  and  it  is  there- 
fore competent  for  it,  in  the  absence  of  constitutional  restrictions,  to  authorize 
the  occupation  of  the  streets  of  the  city  by  a  street-railway  company  without 
the  city's  consent.2  The  constitutions  of  some  states,  however,  require  the 
consent  of  the  municipal  authorities,  and  in  other  states  there  are  general 
statutes  to  the  same  effect.  A  subsurface  railway  wholly  within  the  limits  of 
a  city  is  a  street  railroad  within  the  meaning  of  the  New  York  constitution.3 
The  laws  of  New  York  (Laws  1880,  ch.  582)  providing  that  the  determination 
of  commissioners  may  be  taken  in  lieu  of  the  consent  of  the  said  city  authori- 
ties was  held  unconstitutional.  "  This  provision  of  the  constitution  provides 
that  no  law  shall  authorize  the  construction  and  operation  of  a  street  railway 
except  upon  the  condition  that  the  consent  of  the  owners  of  one-half  in  value 
of  the  property  be  obtained,  and  that  the  consent  also  of  the  local  authorities 
having  the  control  of  that  part  of  the  street  or  highway  upon  which  it  is  pro- 
posed to  construct  and  operate  such  railroad  be  first  obtained ;  or,  in  case  the 
consent  of  such  property  owners  be  not  obtained,  the  general  term  of  the 
Supreme  Court  in  the  district  in  which  the  railway  is  proposed  to  be  con- 
structed may  upon  application  appoint  three  commissioners  who  shall  deter- 
mine, after  the  hearing  of  all  the  parties  interested,  whether  such  railroad 
ought  to  be  constructed  or  operated,  and  their  determination,  confirmed  by 
the  court,  may  be  taken  in  lieu  of  the  consent  of  the  property  owners." 
This  provision  of  the  constitution  was  held  not  violated  by  the  statute  author- 
izing an  existing  railroad  company  to  substitute  cable-power  for  horse-power 
without  securing  the  consent  of  the  local  authorities.4  The  consent  of  local 
authorities  is  not  necessary  to  the  application  for  commissioners  to  determine 
the  expediency  of  constructing  a  road.5 

The  local  authorities  whose  consent  is  necessary  under  the  New  York  laws 
(Laws  1884,  chap.  252,)  are  the  officers  whose  duties  and  powers  concern  the 
supervision,  maintenance,  and  care  of  the  highway,  and  they  are  the  board  of 
high'way  commissioners  of  the  town. 6 

Where  a  constitution  requires  that  the  consent  of  property  owners  or  of  the 
local  authorities  shall  be  obtained,  such  requirement  is  a  condition  precedent 
to  the  right  to  the  use  of  such  streets;  and  if  consent  be  not  secured  and  the 
grant  confers  an  exclusive  franchise  grounded  on  the  condition  that  the 
consent  of  the  city  be  obtained,  the  legislature  is  guilty  of  no  violation  of  the 
charter  by  granting  the  same  privilege  to  another  company.7 

1  23  Amer.  &  Eng.  Ency.  Law  964,  965.  *  In  re  Rochester  Electric  R.  Co.,  123 

2  23  Amer.  &  Eng.  Ency.  Law  965.  N.  Y.  351.     But   see  the   Railroad    Law 
•  In  re  Dist.  Ry.  Co.,  107  N.  Y.  42.  and     the     Transportation    Corporaf  ons 
4 In  re  3d  Ave.  R.  Co.,  121  N.  Y.  536.  Law  of  New  York. 

5/»  re  People's  R.  Co.,  112  N.  Y.  578.  7  People  v.  Barnard,  no  N   Y,  £J> 


§788.          OPERATIONS  PRELIMINARY    TO    CONSTRUCTION.  534 

788.  Obligations   and   Conditions   Imposed   upon   Street-railway  Com- 
pany. —  The  city  itself  may  make  its  consent  conditional  upon  a  company's 
undertaking  to  observe  and  be  subject  to  all  ordinances  of  the  city  already  in 
force  and  thereafter  to  be  passed,  provided  they  are  not  unreasonable.      Cities 
have  required  that  but  one  fare  should  be  charged  to  points  beyond  their 
limits;  1  that  the  company  should  keep  the  streets  occupied  by  it  clean  and  in 
good  repair;2  that  the  city  should  receive  an  annual  bonus  for  the  use  of 
the  streets;3  that  the  roadbed,  poles,  wire,   track,  etc.,  should  be  approved 
by  the  city  council.     Any  condition  may  be  imposed  which  the  city  in  its  dis- 
cretion may  deem  proper  as  the  terms  upon  which  its  consent  shall  be  given, 
except  such  conditions  as  may  be  repugnant  to  the  grant  of  the  franchise  by 
the  legislature  or  to  constitutional  or  statutory  provisions.4 

789.  Consent  Implied,  Revoked,  or  Modified.  —  If  abutting  owners  stand 
by  and  see  a  street-railway  company  construct  and  operate  its  road  under  a 
claim  of  right,  such  acquiescence  will  be  regarded  as  evidence  of  their  con- 
sent.5    When  a  lapse  of  ten  years  and  the  acquiescence  of  property  owners 
and  the  destruction  of  all  written  evidence  are  shown,   very  slight  evidence 
will  be  sufficient   to  establish  the  fact  that  consent  was  obtained  as  required 
by  statute.6 

In  obtaining  the  consent  of  property  holders  the  city  is  to  be  regarded  as 
the  owner  of  an  open  public  square  which  has  been  dedicated  to  the  public 
use  forever,  no  matter  who  holds  the  fee.7 

Where  a  statute  requires  that  the  consent  of  abutting  owners  shall  be 
obtained  before  a  valid  grant  of  the  use  of  the  street  may  be  made,  and  also 
that  the  right  to  build  the  road  shall  be  awarded  to  the  party  who  offers  the 
best  terms  to  the  public,  it  has  been  held  that  the  consent  need  not  in  terms 
be  given  to  the  person  who  is  the  lowest  bidder,  for  the  contract  can  be 
awarded  to  him  alone,  and  the  consents,  no  matter  by  whom  obtained  or  by 
whom  given,  are  in  substance  essential  to  the  construction  and  operation  of 
the  road  in  the  designated  street,  and  therefore  must  inure  to  the  benefit  of 
the  best  bidder.8 

It  has  been  suggested  by  good  authority  that  lot-owners  might  attach 
reasonable  conditions  to  their  consent.9 

A  single-track  street  railway  constructed  with  the  necessary  consent  of 
abutting  owners  may  not  be  double-tracked  without  securing  the  consent  to 
such  change.10  But  if  the  original  grant  was  for  a  double  track,  the  city  may 


v.  Barnard,  no  N.  Y.  548.  6  Chicago  City  R.  Co.  v.  People,  73  111. 

2  Pittsburg,    etc.,    R.    Co.   v.   Birming-  571. 

ham,  51  Pa.  St.  41.  7  Patterson,  etc.,  R.   Co.   v.   Patterson, 

8Covington    St.    R.   Co.    v.   Covington  24  N.  J.  Eq.  158. 

(Ky.),  9  Bush  127.  8  State  v.  Bell,  34  Ohio  St.  194. 

*23  Amer.  &  Eng.  Ency.  Law  969.  9  People  v.  Chicago,  etc.,   R.   Co.,   118 

6  Patterson,  etc.,  R.  Co.  v.  Patterson,  111.  113. 

24  N.  J.  Eq.  158.  10  Roberts  v.  Easton,  19  Ohio  St.  78. 


535  RIGHTS   OF    WAY   OF  STREET  RAILWAY.  §79^ 

not  limit  it  to  a  single  track  after  expenditures  by  the  company  for  construc- 
tion and  equipment.1 

A  property  owner's  consent  to  the  construction  and  operation  of  a  cable 
railway  "over,  along,  and  upon"  the  street  does  not  authorize  a  material 
change  in  the  grade  of  the  street.2  It  has  been  held  that  property  owners 
might  revoke  their  consents  at  any  time  before  the  city  had  taken  final  action.3 

790.  Consent  of  Abutting  Owners  or  of  City. — As  a  street  railway  is  not 
usullay  considered  as  creating  an  additional  burden  upon  the  land,  the 
consent  of  the  abutting  owners  to  its  construction  and  operation  is  not  essen- 
tial unless  such  consent  is  required  by  the  constitution  or  by  statute.  The 
constitution  or  general  statutory  provisions  of  many  states  require  that  no 
street  railway  shall  be  constructed  or  operated  without  the  consent  of  a 
majority  of  the  abutting  landowners.  The  constitution  of  the  state  of  New 
York  and  the  statutes  of  Illinois  and  Ohio  require  that  such  consent  of  the 
property  owners  shall  be  obtained  before  the  road  is  built.  Under  such  a  law 
it  has  been  held  that  the  term  "owners"  means  those  who  own  at  least  a 
freehold  estate;  and  such  an  owner  may  be  represented  by  life-tenants,  and 
by  tenants  by  courtesy  or  by  a  dower,  but  that  a  father  cannot  consent  for 
his  daughter,  a  husband  for  his  wife,  tenants  in  common  for  one  another, 
guardians  for  their  wards,  an  administrator  for  an  executor,  or  a  president  of 
a  private  corporation  without  the  authority  of  the  board  of  directors,  and 
doubt  has  been  expressed  whether  or  not  a  city  council  can  act  for  a  muni- 
cipal corporation.4 

It  has  been  held  that  the  consent  of  property  owners  need  not  be  under 
seal,  though  it  is  required  by  statute  to  be  in  writing.5 

When  the  constitution  or  the  laws  require  that  consent  of  the  owners  be 
obtained,  such  consent  is  absolutely  essential,  and  the  construction  of  the 
railroad  may  be  enjoined  unless  such  consent  is  obtained.  It  is  not  enough 
that  the  company  intends  to  apply  for  consent  in  the  hope  or  expectation  of 
obtaining  it.  Persons  who  are  not  abutting  owners,  though  they  are  citizens 
and  taxpayers,  have  no  ground  of  complaint. 

When  application  has  been  made  for  an  injunction  to  prevent  the  con- 
struction of  a  railroad  upon  a  street,  the  action  of  the  city  council  in  granting 
permission  to  construct  such  railway  is  not  conclusive  against  property 
owners,  or  proof  that  a  majority  consent  has  been  obtained.6 

The  city  council  has  been  permitted  to  allow  application  for  consents  as 
to  a  part  only  of  the  route  covered  by  the  petition.7 

1  Burlington  v.  Burlington  St.  T.   Co.,        Rapp  v.  City,  etc.,  R.  Co.,  12  Wkly.  L. 
49  Iowa  144.  Bull.    119;   Bullock  v.  West   Chic.    Rap. 

2  Fred  v.   Kansas  City  Cable  Ry.  Co.,       Trans.  R.,  23  Chic.  L.  N.  149. 

2  Mo.  App.  Reptr.  1173.  5  In  re  Cortland,  etc.,  R.   Co.,  31  Hun 

8  Bullock  v.  W.  Chic.,  etc. ,  Trans.  Co. ,  (N.  Y.)  72. 

23  Chic.  L.   N.   147;  Hayes  v.  Jones,  27  6  23  Amer.  &  Eng.  Ency.  Law  971. 

Ohio  St.  ai8.  7  Simmons    v.    Toledo,   5   Ohio  C.   Ct. 

*  Booth    on     Street    Railways,     citing  124.                                                             % 


§79*'          OPERATIONS  PRELIMINARY    TO    CONSTRUCTION.  $36 

791.  Time  Limit  for  Completion  of  Road. — When  a  franchise  of  a  street- 
railway  company  requires  that  the  road  shall  be  constructed  within  a  specified 
time,  it  is  a  condition  subsequent,  failing  in  which  the  rights  of  the  company 
are  liable  to  forfeiture.     Whether  or  not  the  road  is  substantially  constructed, 
and  what  constitutes  a  completed  track,  are  questions  of  fact  for  the  jury,  and 
it  has  been  held   error  for  the  court  to  instruct  the  jury  that  a  road  was 
sufficiently  constructed  "  if  the  ties  were  laid  and  the  rails  placed  and  spiked 
thereon."  1 

If  the  failure  to  complete  the  road  be  due  to  extrinsic  causes  and  in  no 
way  the  fault  of  the  company,  as  by  injunctions  or  by  interference  on  the  part 
of  police  officers  of  the  city  acting  under  direction  of  the  mayor,  the  right  of 
the  company  has  been  held  not  to  be  lost,  and  the  city  may  be  enjoined  from 
interference  with  the  laying  of  the  tracks  after  the  expiration  of  the  time.  If 
the  city  allow  the  company  to  proceed  with  the  work  of  construction  after  the 
expiration  of  the  time  without  interposing,  it  may  be  estopped  from  claiming 
a  forfeiture.2 

792.  Exclusive  Privileges  Not  in  Favor. — Street-railway  franchises   are 
never  construed  to  be  exclusive  if  such  a  construction  can  be  avoided.     It  is 
a  policy  of  the  law  always  to  discourage  monopolies,  and  the  city  has  not  the 
power  to  grant  exclusive  privileges  in  its  streets  unless  the  power  has  been 
conferred  by  the  legislature  in  direct  and  express  terms.      It  can  never  exist 
by  implication  qr  construction,  and  the  question  has  frequently  been  raised 
as  to  the  authority  to  delegate  such  a  power  to  a  municipality.     Such  ques. 
tions  arise  in  the  construction  of  a  constitutional  provision  against  the  creation 
of  monopolies  by  the  legislature.     Some  cases  maintain  that   the  authority 
depends  upon  the  length  of  time  through  which  such  privilege  is  to  extend, 
and  uphold  such  power  if  the  length  of  time  be  not  unreasonable.     Exclusive 
rights  over  private  property  may  be  acquired  by  contract  with  the  owners,  and 
such  rights  will  be  recognized  even  though  afterwards  a  highway  be  laid  out 
over  the  land  occupied.     There  can  be  no  doubt   that  the  legislature  has 
power  to  grant  an  individual  or  a  corporation  a  franchise  to  construct  and 
operate  a  street  railway  within  any  city,  town,  or  village  in  the  state  unless  it 
is  expressly  prohibited  by  the  constitution.     The  control  of  all  highways  rests 
in  the  legislature,  and  its  right  in  this  regard  is  not  impaired  by  the  fact  that 
it  had  previously  delegated  the  right  to  control  and  regulate  certain  streets  to 
the  city. 

A  street  railway  is  not  regarded  as  an  additional  burden  upon  the  street, 
and  therefore  the  legislature's  act  granting  a  franchise  to  a  company  may  be 
valid  though  there  be  no  provisions  made  as  to  compensation  to,  or  as  to 
obtaining  the  consent  of,  the  owners  of  the  abutting  property. 3 

793.  Construction   of  Street   Railways. — Street  railways  are  built  and 

1  Houston  v.  Houston,  etc.,   R.  Co.,  84  "23  Amer.  &  Eng.  Ency.  Law  975. 

Tex.  581.  323  Amer.  &  Eng.  Ency.  Law  953. 


537  RIGHTS   OF    WAY   OF  STREET  RAILWAY.  §794- 

operated  upon  streets  upon  the  legal  presumption  that  they  do  not  constitute 
an  additional  burden  and  must  therefore  be  so  constructed  that  the  use  of  the 
highway  shall  not  be  interfered  with  or  the  rights  of  the  public  infringed. 
The  company  must  build  and  keep  its  road  to  the  established  grade  of  the 
street,  and  must  make  it  conform  to  subsequent  changes  in  the  street.  The 
method  of  construction  and  the  materials  employed  must  be  of  such  shapes 
and  forms  that  when  laid  they  will  not  prevent  the  public  from  making  all 
proper  uses  of  the  streets  for  vehicles.  A  street-railway  company  is  liable  for 
all  injuries  resulting  as  a  proximate  consequence  of  its  failure  to  comply  with 
this  duty.1  A  street-railway  company  may  not  subject  the  public  to  incon- 
venience by  laying  a  heavy  rail  suitable  for  steam  railroads.2 

794.  Liability  for  Defective  Track  and  Structures, — The  company  is  not 
relieved  from  liability  for  injuries  received  by  reason  of  defects  in  the  con- 
struction of  its  track  by  the  fact  that  it  has  complied  with  all  the  require- 
ments of  the  ordinances  of  the  city  prescribing  the  manner  iri  which  the  track 
shall  be  constructed,  or  by  the  fact  that  the  construction  of  the  road  has  been 
examined  and  approved  and  accepted  by  the  agent  of  the  city  charged  with 
the  duty  of  such  examination.3  The  complainant  has  the  burden  of  proof  to 
show  negligence  on  the  part  of  the  company,  and  if  the  evidence  fails  to  show- 
that  the  injury  resulted  from  any  neglect  of  duty  on  the  part  of  the  company, 
there  can  be  no  recovery.4 

The  defects  of  construction  which  most  often  are  a  cause  of  injury  are 
those  of  defective  switches  or  turntables,  contracted  or  expanded  cable-slots, 
broken  or  improperly  hung  electric  wires,  and  raised  or  projecting  rails.5 

There  can  be  no  action  for  damages  arising  from  the  proper  exercise  of  a 
lawful  authority,  and  therefore  street-railway  companies  are  not  liable  for 
damages  necessarily  occasioned  by  the  construction  of  the  road. 

When  the  authorities  have  the  power  to  decide  on  what  streets  a  railway 
shall  be  constructed,  the  charter  of  the  company  under  a  general  law  confers 
simply  a  corporate  existence  and  does  not  of  itself  give  any  right  to  the  use 
of  any  street.  To  acquire  such  a  right,  the  consent  of  the  city  government 
must  be  obtained.  If  the  location  be  fixed  by  statute  or  ordinance,  the  com- 
pany may  not  vary  from  the  lines  prescribed,  though  it  seems  that  a  slight  de- 
flection may  be  made,  such  as  a  slight  departure  from  the  center  of  the  street, 
in  order  to  reach  the  company's  own  property.  A  material  departure  from 
an  authorized  route  is  a  public  nuisance  for  which  the  company  may  be  in- 
dicted or  be  enjoined  from  operating  its  road. 

Where  authority  to  use  the  street  has  been  conferred  and  there  remains 

1  23  Amer.  &  Eng.  Ency.  Law  978-981.  32  Ind.  45. 

2  Com.   v.    Cent.   Pass.   R.  Co.,  52  Pa.  *  Eagan  v.  42d  St.  R.  Co.,  19  N.  Y.  St. 
St.  519.     But  see  Millvale  v.   Evergreen  Rep.    676.     And  see  Nivette  v.  New  Or- 
R.    Co.,    131  Pa.    St.    i;  Easton,   etc.,  v.  leans,  etc.,  R.  Co..  42  La.  Ann.  1153. 
Easton,  133  Pa.  St.  505.  5  See  23  Amer.  &  Eng.  Ency.  Law  979- 

3  Dalzell  v.  Indianapolis,   etc.,  R.  Co.,  983,  and  cases  cited. 


§795-          OPERATIONS  PRELIMINARY    TO    CONSTRUCTION.  538 

only  a  ministerial  duty  to  be  performed  by  the  officers  of  the  city  before  the 
street  railway  can  be  put  in  possession,  the  court  may  compel  the  performance 
of  the  necessary  act  by  mandamus. 

The  extension  of  a  street  railway  may  be  authorized  by  the  legislature 
only  or  its  duly  empowered  agents.  If  this  power  has  been  delegated  to  the 
common  council  of  the  city,  the  courts  will  not  interfere  with  its  exercise 
except  in  a  plain  case  of  fraud  or  abuse. 

Abutters  upon  public  streets  in  cities  are  entitled  to  damages  sustained  by 
them  by  reason  of  a  diversion  of  the  street  from  the  purposes  for  which  it  was 
originally  taken  and  its  appropriation  to  other  inconsistent  uses.1  Whatever 
is  utilized  for  street  purposes  may  occupy  a  street.  Those  things  that  are 
merely  used  for  municipal  purposes  and  are  not  for  street  purposes  are  an 
additional  burden  upon  the  streets.  Street  railways  are  for  travel;  sewers 
drain  surface-waters  of  highways;  water-pipes  supply  water  to  sprinkle  and 
wash  streets;  electric-light  wires  or  conduits  and  gas-pipes  furnish  light  for 
the  streets  and  aid  the  public  in  their  use.  All  these  are  therefore  for  street 
purposes,  in  part  at  least.  With  telegraph  and  telephone  wires  it  is  not 
so.  They  in  no  way  preserve  or  improve  the  streets.2 

795.  Construction  of  Street-railway  Franchises. — In  the  construction 
of  the  charters  of  a  corporation  it  is  a  well-established  rule  that  they  shall  be 
construed  most  favorably  to  the  public  and  strictly  against  the  incorporators. 
This  rule  is  not  carried  so  far  as  to  defeat  the  very  purpose  for  which  the 
charter  was  given,  but  nothing  will  be  included  unless  plainly  within  the  scope 
of  its  meaning.  The  grant  of  an  exclusive  right  to  construct  and  operate 
horse  railways  has  been  held  not  to  include  authority  to  construct  and  operate 
a  cable  road,  notwithstanding  that  at  the  time  of  the  grant  the  horse  railway 
was  the  only  street  railway  in  practical  use  and  the  latter  was  practically 
unknown.  A  power  to  make  connections  with  other  roads  is  referred  to  such 
roads  only  as  existed  at  the  time  of  the  grant. 

A  power  to  construct  a  road  on,  over,  and  along  certain  streets  or  alleys 
has  been  held  not  a  power  to  construct  the  tracks  on  the  side  of  the  streets  or 
alleys  mentioned.  A  right  to  construct  and  operate  a  road  is  authority  to 
construct  such  switches  and  turnouts  as  are  necessary  for  the  operation  of  the 
road. 

It  has  generally  been  held  that  authority  to  construct  and  operate  a  road 
to  a  town  or  place  authorizes  the  construction  and  operation  of  such  road 
within  that  place  to  its  depot,  though  that  be  centrally  located  in  the  place.3 

1  Story    v.   New   York    El.    R.    Co.,   90  35  Barb.    (N.  Y.)  373;    Western    Pa.   R. 
N.  Y.  122;  Lohr  v.  Met.  El.  R.  Co.  (N.  Y.),  Co.'s  App.,  99  Pa.  St.  155;  Turnpike  R. 
10  N.  E.  Rep.  528  [18^7];  Wagner  v.  Met.  Co.  v.  Coventry,  10  Johns    (N.   Y.)  389; 
El.  R.  Co.  (N.  Y.),  10  N.  E.  Rep.  535.  McCartney  v.  Chicago,  etc.,  R.  Co.,  112 

2  Palmer  v.   Larchmont   Elec.    Co.,  158  111.    611.       But  see,  contra,   Northeastern 
N.  Y.  235.  R.  Co.  v.  Payne,  8  Rich.  (S.  C.)  177. 

3  Mason  v.  Brooklyn  St.,  etc.,  R.  Co., 


539  RIGHTS   OF    WAY   OF  STREET  RAILWAY.  §797' 

796.  Forfeiture  of  Street-railway  Franchise. — A  franchise  of  a   street 
railway  may  be  lost  either  by  voluntary  act  of  transfer,  or  by  the  expiration  of 
the  period  prescribed  for  its  existence,   or  from  non-user  or  misuser.     The 
rights  of  a  company  may  be  transferred  only  when  authority  has  been  con- 
ferred to  do  so.      If  a  franchise  be  granted  for  a  certain  period  of  time,  it 
expires  at  the  end  of  that  period  and  no  judicial  proceeding  is  necessary  to 
declare  it  at  an  end.      Failure  of  a  city  conferring  the  franchise  to  fulfill  any 
collateral  contract  obligations  will  not  prolong  its  existence. 

However,  the  courts  exercise  great  care  in  deciding  suits  whose  object  is 
to  work  the  forfeiture  of  corporate  franchises,  and  not  every  instance  of  non- 
performance  of  the  acts  of  incorporation  or  every  misuser  will  forfeit  the 
franchise.  The  substantial  performance  according  to  the  intent  of  the  charter 
is  all  that  will  be  required.1 

To  work  a  forfeiture  it  is  necessary  to  bring  direct  proceedings  against  the 
-corporation  for  that  purpose,  and  the  government  which  created  the  corpora- 
tion must  institute  such  proceedings.  If,  however,  the  acts  of  incorporation 
provide  that  for  the  non-performance  of  certain  conditions  "corporate  exist- 
ence and  power  shall  cease,"  or  "that  this  act  of  the  powers,  rights,  and 
franchises  herein  and  hereby  granted  shall  be  deemed  forfeited  and  terminated, " 
or  that  "the  franchises  and  privileges  herein  granted  shall  truly  cease  and  be 
forfeited,"  then  the  forfeiture  is  self-executed  and  requires  no  action  or 
judicial  proceedings  to  declare  it  so. 

When  the  act  provides  that  in  case  of  default  the  company  shall  "  forfeit 
the  rights  "  held  by  it  under  the  act  of  incorporation,  that  alone  does  not  put 
an  end  to  the  corporate  existence,  but  simply  gives  the  state  a  right  to  enforce 
the  forfeiture. 

Street-railway  franchises  granted  by  the  legislature  have  been  distinguished 
from  the  mere  license  of  the  city  to  occupy  its  streets.  As  before  explained, 
the  latter  is  not  a  franchise,  but  simply  a  license  which,  if  not  acted  upon  by 
the  grantee  within  the  time  fixed  by  the  ordinance,  or  if  attempted  but  subse- 
quently abandoned,  may  be  granted  by  the  city  to  another  company  without 
first  securing  a  decree  of  forfeiture  from  the  courts. 

797.  Unauthorized  Use  of  Streets  and  Ways. — The  unauthorized  use  of 
public  highways  by  a  street  railway  in  the  construction  and  operation  of  its 
road  is  a  nuisance  of  itself,  being  an  invasion  of  the  public  rights  therein. 
For  maintaining  such  a  nuisance  a  street-railway  company  may  be  indicted, 
or  it  may  be  enjoined  by  the  public  authorities,  or  by  a  private  citizen  who 
makes  out  a  case  of  special  damages  to  himself.     The  fact  that  a  city  has  the 
right   to   remove  the  track  by  force  is  no  objection  to   the  granting  of  an 
injunction   against   the   wrongful   laying   of    such   track.      This  is   upon   the 
ground  that  when  a  party  has  the  remedy  by  his  own  act,  involving  the  use  of 
force,  it  does  not  constitute  an  adequate  remedy  at  law  which  will  exclude  the 

1  23  Amer.  &  Eng.  Ency.  Law  976. 


§798-          OPERATIONS*  PRELIMINARY   TO    CONSTRUCTION.  54<D 

equitable  relief.1  If  a  road  be  constructed  in  a  manner  which  is  not  author- 
ized by  the  statute  under  which  the  corporation  was  organized,  and  if  the 
grade  do  not  conform  to  the  grade  of  the  street,  the  road  may  be  adjudged  a 
public  nuisance.2 

A  street-railway  company  is  confined  strictly  to  the  streets  which  it  is 
authorized  to  occupy,  and  a  track  built  where  the  company  has  no  authority 
to  place  it  is  a  nuisance  which  may  be  enjoined.3 

The  erection  without  competent  legal  authority  of  a  wall  of  masonry  and 
an  iron  structure  along  the  middle  of  a  highway  by  a  surface-railroad  com- 
pany, to  connect  its  tracks  with  those  of  an  elevated -rail  road  company,  con- 
stitutes a  nuisance.4  The  use  of  the  tracks  of  a  street-railway  company  for 
private  purposes  has  been  held  to  constitute  a  nuisance.5 

If  the  nuisance  be  purely  a  public  one,  it  can  be  restrained  only  by  public 
authority.  In  order  that  a  private  citizen  or  corporation  may  enjoin  the 
unauthorized  use  of  a  public  street  by  a  railway  company,  special  damages, 
must  be  shown  to  have  been  suffered  by  such  party.6 

Where  a  bill  to  enjoin  defendant  from  constructing  an  electric  street  rail- 
road in  certain  streets  in  a  city,  though  filed  in  form  by  the  attorney-general 
in  behalf  of  the  people  of  the  state,  was  not  filed  for  the  purpose  of  asserting 
any  public  right  or  protecting  any  public  interest  in  the  streets,  but  was  filed 
at  the  instance  of  rival  railway  companies,  it  was  held  to  have  been  properly 
dismissed.7 

A  grant  by  a  city  to  a  street  railway  of  a  right  of  way  for  its  track  over  a 
remote  portion  of  a  public  park  which  does  not  interfere  with  the  free  passage 
or  use  thereof  in  the  customary  manner  has  been  held  not  to  create  such  a 
nuisance  as  will  enable  an  individual  to  maintain  an  action  in  behalf  of  the 
public  to  abate  and  enjoin  the  same.8 

798.  Electric  Trolley  Lines  upon  Streets  and  Ways, — A  contention  that 
an  electric  trolley  system  with  its  poles  and  wires  and  its  track  constituted  a 
new  servitude  upon  the  street  was  not  sustained,  and  the  electric  railway  was 
considered  to  be  no  different  from  other  street  railroads  in  this  regard,  it 
being  held  that  the  question  whether  or  not  an  additional  burden  was  imposed 
could  not  be  determined  from  the  motive  power  employed.9 

The  wires  of  an  electric  railway  have  been  distinguished  from  telegraph- 
wires.  Telegraph-  and  telephone-wires  have  been  held  not  to  be  for  the  pur- 
pose of  facilitating  the  use  of  the  streets,  whereas  the  poles  and  wires  of  an 

1  23  Amer.  &  Eng.  Ency.  Law  959.  6  23  Amer.  &  Eng.  Ency.  Law  959.     See 

2  Denver,  etc.,   R.   Co.  v.  Denver  City  also    Musser    z/.    Fairmont,    etc.,     St.    R. 
R.  Co.,  2  Col.  673.  Co.,  7  Amer.   Law  Reg.  284;  Roberts  v. 

3  Stamford  v.  Stamford  Horse  R.  Co.,  Easton,  19  Ohio  St.  78. 

56  Conn.  381;  Com.  v.  Erie,  etc.,  R.  Co.,  7  People  v.  General  Electric  Ry.  Co.,  50 

27  Pa.  St.  339.     And  see  Zabriskie  v.  Jer-  N.  E.  Rep.  158,  172  111.  129  [1898]. 

sev  City,  etc.,  R.  Co.,  13  N.  J.  Eq.  314.  8  People  v.  Park  &  O.  N.  Co.  (Cal.),  18 

4  Eldert    v.    Long    Island   Electric   Ry.  Pac.  Rep.  141  [1888]. 

Co.,  51  N.  Y.  Supp.  186.  9  23  Amer.  &  Eng.  Ency.  Law  957  and 

5  Fanning  v.  Osborne,  192  N.  Y.  441.  many  cases  cited. 


54  !  RIGHTS   OF   WAY  OF  S 'TREE 7'  RAILWAY.  §  799- 

electric  trolley  system  are  directly  auxiliary  to  the  uses  of  the  street  in  that 
they  communicate  the  power  by  which  the  street  cars  are  propelled.1 

When,  however,  an  electric  passenger  railway,  running  on  the  highways 
through  country  towns,  proposes  to  grade  down  the  highways  to  such  an 
extent  as  to  impair  the  right  of  access  of  abutting  owners,  it  imposes  an 
additional  burden  on  such  highways.2 

Ordinary  railroads  are  not  to  be  distinguished  from  street  railways  in  this 
respect  by  the  motive  power  employed,  but  in  the  character  of  the  use.  A 
street  railway  is  auxiliary  to  the  use  of  the  street.  It  is  a  mode  of  travel,  and 
is  closely  allied  to  those  vehicles  in  common  use  upon  the  highway,  and  as  a 
matter  of  fact  and  common  knowledge  is  very  much  less  of  an  obstruction 
than  an  ordinary  railroad. 

The  fact  that  a  kinetic  motor  is  still  in  its  experimental  stages,  or  that  the 
company  operating  a  street  railroad  is  controlled  by  persons  interested  in  the 
motor  system,  is  no  ground  upon  which  to  withhold  the  consent  of  the  rail- 
road commissioners  for  the  operation  of  the  street  railroad  with  such  motors. a 

799.  Change  of  Motive  Power  on  Street  Railway. — Where  street-railway 
charters  were  granted  when  horse  power  was  the  only  motive  power  utilized, 
the  courts  have  shown  some  reluctance  in  construing  them  so  as  to  author- 
ize the  substitution  of  steam,  cable,  compressed  air,  or  electricity  to  the 
possible  detriment  to  public  traffic.  A  change  from  horse  to  mechanical 
power  may  not  change  the  character  of  the  railway,  though  it  might  be  an 
additional  burden  upon  the  street.  Nowadays  the  motive  power  contem- 
plated is  usually  specified  in  the  charter.4 

Under  the  general  power  of  police  regulation  a  city  may  forbid  the  use  of 
a  mechanical  power  where  the  safety  of  the  public  demands  it.  This  is  so 
even  though  the  charter  may  have  authorized  the  use  of  such  a  power.  The 
use  of  steam  in  the  streets  of  a  city  has  been  declared  a  nuisance  and  its  use 
enjoined.  It  has  also  been  held  within  the  powers  of  the  city  to  authorize  a 
change  of  power  or  the  use  of  a  particular  power.  The  legislature  may,  of 
course,  authorize  an  adoption  of  the  motive  power  not  allowed  by  the  com- 
pany's charter.  The  motive  power  adopted  or  implied  does  not  change  the 
character  of  the  railway.  It  remains  a  street  railway,  and  the  rules  of  law  and 
the  requirements  of  statutes  or  ordinances  relative  to  street  railways  apply. 

1  Judge   Dillon,   z  Dill.    Munic.    Corp.       Co.,  74   N.  W.  Rep.  538  [1898]. 

(4th  ed.),  §734.     But  see,  contra,  Jaynes  'People  v.  Board  of    Railroad  Com'rs, 

v.  Omaha  St.  Ry.  Co.  (Neb.),  74  N.  W.  52  N.  Y.  Supp.  908  [1898]. 

Rep.  67.  *  23  Amer.  &  Eng.   Ency.  Law  996  and 

2  Zehren  v.  Milwaukee  Elec.  Ry.  &  L.  cases  cited. 


CHAPTER  XXXIX. 
RIGHT  OF  WAY  FOR  TELEGRAPH  AND  TELEPHONE  LINES. 

811.  Telegraph  and  Telephone  Lines  in  Public  Ways. — The  laws  and 
rules  governing  rights  and  ways  for  telegraph  and  telephone  lines  do  not  differ 
materially  from  those  governing  railroads  and  street  railways.     The  former  are 
•usually  built  upon  country  roads,  highways,  or  in  the  streets  of  a  village  or 
city;  and  it  is  necessary  that  authority  shall  be  granted  such  companies  for  the 
construction  of  their  lines  upon  public  ways,  as  such  rights  cannot  exist  from 
implication.1   The  laws  and  statutes  applicable  to  "  telegraph  "  companies  and 
giving  certain  powers  to  them,  as  the  power  to  exercise  the  right  of  eminent 
domain,  apply  equally  to  "telephone"  companies.2 

812.  Authority  to  Occupy  Streets  must   Come    from  Legislature. — To 
authorize  the  use  of  streets  for  telegraph-poles,  it  is  necessary  that  legislative 
sanction  should  be    directly  given  or  immediately  conferred  through  proper 
municipal  action.     If  such  poles  be  erected  within  the  limits  of  the  street  or 
highway  without  such  sanction,  they  are  nuisances;    but  if  the  erection   be 
authorized,  they  are  not    nuisances.3     The  ultimate  authority  to  grant   such 
privileges  rests  in  the  legislature  by  virtue  of  its  power  of  control  over  all  streets 
and  highways.4 

Such  power  of  the  legislature  may  be  delegated  to  cities  and  villages,  and  in 
general  a  city  or  village  has  the  power  to  grant  to  a  telephone  or  telegraph 
•company  the  right  to  construct  a  line  upon  its  streets,  provided  such  construc- 
tion does  not  interfere  with  the  free  use  of  the  streets  by  the  public.5  In  the 
state  of  New  Jersey  it  is  required  by  statute  that  the  consent  of  town  authori- 
ties shall  be  obtained  before  the  telegraph  lines  may  be  built.6  In  many  states 

1  New  York,  etc.,  Teleph.  Co.  v.  East  4  Hudson   Teleph.   Co.  v.  Jersey  City, 
Orange    Tp.,    42    N.    J.    Eq.    490;  Atty.-       49    N.     J.    Law    303;     Irwin    v.    Gt.    So! 
Gen  1     v.     United     Kingdom    Tel.      Co.       Teleph.  Co.,  37  La.  Ann.  63. 

(Eng.),  30  Beav.  287.  *  25    Amer    &   Eng-   Ency     Law  753;  2 

2  Gulf,  etc.,   Ry.   Co.   v.  Southwestern  Dillon  on  Municipal  Corp.  (4th  ed.)   §710. 
Teleg.   &   Teleph.   Co.  (Tex.),   45   S.  W.  «  Broome   v.  N.   Y.,  etc.,   Teleph.   Co!, 
Rep-  151.                                                  c  49  N.  J.   Law  624;  State  v.   Newark    (N. 

'Com.  v.  Boston,  97  Mass.  555;  Young  J.),    8    Atl.    Rep.    128     [1887].     And    see 

v.  Yarmouth  (Mass.),  9  Gray  386;    Reg.  State,  Meyers  v.  Hudson  Co.  E.  Co.  (N. 

v.   United   Kingdom  Tel.  Co.,  9  Cox  C.  J.),  37  Atl.  Rep.  618;  King  v.  Poor  Laws 

C.     171.     And    see   2    Dillon    on    Munic.  Com'rs,  6  Ad.  &  El.  7. 
Corp.  (3d  ed.)  698. 

542 


543  TELEGRAPH  AND    TELEPHONE  LINES.  §  814. 

it  is  held  that  a  legislative  act  or  municipal  ordinance  which  authorized  the 
construction  of  a  line  upon  a  street  is  void  if  it  fail  to  provide  for  compensation 
to  abutting  owners.1 

813.  Restrictions  Imposed   by  Legislature. — Frequently  the  legislative 
grant  to  occupy  city  streets  is  conditioned  upon  obtaining  the  consent  of  the 
city,  and  power  is  given  to  the  city  to  impose  restrictions  and  conditions.2     If 
no  such  conditions  are  imposed  by  the  legislature,  it  seems  the  city  cannot 
impose  restrictions,  nor  can  village  authorities  interfere  with  the  exercise  of  a 
company's  rights.3     A  charter  authorizing  a  license-tax  for  regular  telephone 
companies  has  been  held  to  confer  power  to  grant  to  such  companies  the  right 
to  erect  poles  in  the  streets.4 

814.  Telegraph  Lines  a  Burden  upon  Streets. — Occupation  of  a  street  by 
a  telegraph  or  telephone  line  and  poles  constitutes  a  new  use  of  the  street  and 
an  additional  burden  upon  it.      Owners  of  abutting  property  are  entitled  to 
compensation  for  such  a  use;  but  the  erection  and  maintenance  of  electric  street- 
railway  poles  in  the  street  if  properly  placed  is  not  an  additional  burden.5 
The  right  to  use  the  street  for  telegraph  and  telephone  lines  must  be  acquired 
by  condemnation  proceedings,  or  by  voluntary  consent  of  the  abutting  land- 
owners.    Where  the  only  injury  shown  was  that  which  would  result  from  wires 
passing  over  the  street  in  front  of  premises,  the  court  held  that  the  case  did  not 
authorize  an  injunction  against  the  erection  of  the  poles  and  wires.6  Courts  are, 
as  a  rule,  slow  to  require  the  removal  of  a  public  work  or  a  suspension  of  its 
operations  after  it  has  been  erected  and  completed.     If  an   injunction   be 
granted  at  all  in  such  a  case,  it  is  usually  on  condition  that  it  shall  be  inopera- 
tive if  the  company  shall  make  proper  compensation  within  a  reasonable  time. 
Such  a  case  is  one  in  which  a  court  might  be  justified  in  refusing  an  injunction 
which  would  prevent  the  completion  of  a  work  of  great  public  benefit,  and  is 
one  in  which  the  rights  of  the  public  might  suffer  if  an  injunction  were  granted. 
The  court  might  say  to  the  plaintiff  who  sought  an  injunction  in  such  a  case 
that  he  had  a  remedy  at  law  for  damages  which  he  had  suffered.      It  is  insisted 
on   the  other  hand   that  the   proprietary   rights  of  the    landowner  would  be 
interfered  with  in  a  manner  detrimental  to  his  interest  as  owner  of  the  fee, 
and  that  the  action  of  a  telephone  company  in  taking  possession  of  his  land 
forcibly  and  against  his  will  comes  within  the  constitutional  inhibition  that 
private  property  shall  not  be  taken  or  damaged  without  just  compensation. 

1  Stowers  v.  Postal  Tel.  Co.,  68  Miss.       v.  Warwick  (Pa.),  40  Atl.  Rep.  93  [1898]. 
559;   Chesp.,   etc.,    Teleph.   Co.   v.   Mac-  *  Hershfield  v.  Rocky  Mt.  Bell  Teleph. 
Kenzie,  74  Md.   36;  So.    West.  R.   Co.   v.       Co.,  12  Mont.  102. 

So.  Tel.  Co.,  46  Ga.  43;  State,  Meyers  v.  5Snyder    v.    Ft.    Madison    St.  Ry.   Co. 

Hudson  Co.  E.  Co.  (N.  J.),  37  Atl.  Rep.  (Iowa),  75  N.  W.   Rep.   179;  25  Amer.  & 

618.  Eng.   Ency.   Law  753,    mahy  cases  cited; 

2  2  Dillon  on  Municipal  Corp.  (4th  ed.),  Eels    v.    Amer.    Teleg.    &    Teleph.     Co. 
§  -06.  (Sup.),  20  N.  Y.  Supp.  600. 

3  State  v.   Flad,  23  Mo.  App.  185.    See  6  Roake  v.    Amer.    Tel.    Co.,  41  N.  J. 
State,   Mathews  v.   Central   U.  Tel.  Co.,  Eq.  35. 

14  Ohio  C.   C.   273,  and  Commonwealth 


§  8 1 5.  OPERATIONS  PRELIMINARY   TO    CONSTRUCTION.  544 

This  position  is  without  doubt  the  one  sustained  by  the  best  authority,  and  it 
rests  upon  sound  principles  of  law.  The  construction  and  maintenance  of  a 
telegraph  or  telephone  line  upon  a  highway  is  a  new  and  additional  burden 
upon  the  fee  and  one  to  which  it  was. not  contemplated  that  the  highway  should 
be  subjected,  and  for  this  reason  the  owner  is  entitled  to  additional  compensa- 
tion.1 The  same  has  been  held  true  of  the  poles  and  wires  of  an  electric  rail- 
way.2 

Where  a  telephone  company,  through  its  employees,  had  been  placed  in 
possession  of  a  line  of  way  and  of  telephone-posts  on  the  property  of  another 
without  legal  right,  a  prayer  by  the  owner  for  the  removal  of  the  posts  will  not 
be  granted  where  the  evidence  shows  that  the  company  would  be  entitled  to 
have  the  same  line  re-established  as  its  right  of  way,  and  its  posts  immediately 
replaced  in  the  same  position.  The  company,  however,  will  be  compelled  to 
pay  the  value  of  the  right  of  way,  and  damages  for  the  illegal  invasion  of  the 
owner's  right  of  property.3 

815.  Owner  of  Street  Entitled  to  Compensation  for  Additional  Burden. 
— Where,  however,  the  absolute  ownership  of  the  highway  is  vested  in  the 
public,  there  can  be  no  legal  objection  to  a  grant  by  the  public  of  the  right  to 
erect  such  poles  and  wires  without  regarding  the  adjacent  property  owners. 
Usually,  however,  as  we  have  seen,*  the  property  in  the  street  belongs  to 
adjacent  owners,  and  only  those  uses  of  a  st  reet  have  been  permitted  which 
are  incident  to  public  travel.  It  is  clear  that  every  use  of  the  highway  which 
is  not  incident  to  travel  is  an  additional  burden  for  which  the  owner  of  the 
soil  of  the  street  is  entitled  to  additional  compensation;  and  this  right  cannot 
be  taken  from  him  without  his  consent  except  by  proceedings  regularly  insti- 
tuted and  prosecuted  according  to  law.4  A  county  board  has  no  power  to 
permit  a  telegraph  company  to  erect  poles  in  a  highway  without  compensation 
to  the  owner  of  the  fee  therein,  in  view  of  the  constitutional  declaration 
that  "private  property  shall  not  be  taken  or  damaged  without  just  compen- 
sation." 5 

As  Judge  Dillon  has  said  in  his  book  on  municipal  corporations:  "The 
author  considers  the  true  doctrine  to  be  that  the  rights  of  an  abutter  as  between 
himself  and  the  public  are  substantially  the  same  whether  the  fee  is  in  him 
subject  to  the  public  use,  or  in  the  city  in  trust  for  the  street  use  proper.  On 
the  whole,"  he  says,  "the  safer  and  perhaps  sounder  view  is  that  such  a  use 
of  a  street  or  highway,  attended  as  it  may  be,  especially  in  cities,  with  serious 
damage  and  not  being  a  convenience  to  the  abutting  owner,  is  not  a  street  or 

1  25  Amer.  &  Eng.  Ency.   Law  754,  and  8  Fuselier  v.  Great  So.  Teleg.  &  Tcleph. 

cases  cited.  Co.,  24  So.  Rep.  274. 

"Jaynest/.  Omaha  St.   Ry.  Co.  (Neb.),  *  Pac.  Post.  Tel.    Cab.   Co.    v.    Irvine, 

74  N.   W.   Rep.    67.      Contra,    Snyder    v.  49  Fed.  Rep.  113. 

Ft.  Madison  St.  Ry.  Co.  (Iowa),  75  N.  W.  5  Const.,  art.  2,  §  13;  Postal  Tel.  Cable 

Rep.  179  [1898].  Co.  v.  Eaton,  170  111.  513  [1897]. 

*  See  Sees.  441-460,  supra. 


545  TELEGRAPH  AND  TELEPHONE  LINES.         §  8l6. 

highway  use  proper,  and  hence  entitles  the  owner  to  compensation  for  such  use 
or  for  any  actual  injury  to  his  property  caused  by  poles  and  lines  and  wires 
placed  in  front  thereof."  l 

The  legal  consent  of  the  state  to  the  erection  of  poles  in  highways  is  only 
intended  to  protect  the  telegraph  company  from  indictment  for  maintaining  a 
public  nuisance  by  so  doing.  It  gives  the  company  no  right  to  erect  such  poles 
unless  the  owner  consents  or  receives  compensation.2 

The  law  as  expressed  in  the  text  of  the  last  paragraph  is  not  universally 
recognized.  The  Massachusetts  courts  have  held  that  an  act  authorizing  the 
construction  of  telegraph  lines  in  highways  did  not  provide  for  compensation 
to  abutting  owners,  and  that  nevertheless  the  statute  was  constitutional  and 
valid  since  no  additional  servitude  was  imposed  by  the  erection  of  poles  and 
wires  along  the  highway.  This  Massachusetts  doctrine  has  found  some  favor 
in  other  courts,  among  them  those  of  Indiana,3  Louisiana,  Missouri,  and  the' 
District  of  Columbia,  but  the  decisions  have  not  been  without  strong  dissent- 
ing opinion  in  many  of  the  cases.4 

816.  Measure  of  Damages  for  Use  of  Street  for  Telegraph  Lines.— 
Abutting  owners  are  not  only  entitled  to  compensation  for  the  use  of  a  street, 
but  also  to  damages  for  any  material  injury  to  their  easement  of  access  to,  or 
passage  over,  the  street.  Ownership  of  the  fee  of  the  soil  of  the  street  occupied 
does  not  affect  their  rights.5 

The  measure  of  damages  to  the  abutting  owner  is  the  amount  which  the 
value  of  the  property  has  been  diminished  either  in  rents  or  in  its  market  price> 
or  the  difference  in  the  value  of  the  property  before  and  after  the  construction 
of  the  line.6 

Under  an  ordinance  authorizing  a  telephone  company  "to  run  and  main- 
tain its  wires  over  and  through  the  streets  of  the  city  .  .  .  for  the  purpose  of 
establishing  telephonic  communication  between  its  patrons  and  between  its 
exchange  office  and  the  subscribers  thereto,"  and  imposing  as  a  condition 
only  that  it  comply  with  all  ordinances  "regulating  or  in  any  manner  con- 
trolling  .  .  .  telephone  companies  in  the  use  of  the  streets  for  ...  telephone 
purposes,"  the  determination  of  what  streets  shall  be  occupied  is  for  the  com- 
pany, except  possibly  in  the  case  of  some  street  exceptionally  situated.7 

The  original  grant  to  a  telephone  company  to  occupy  any  streets  is  not 
affected  by  the  mode  of  use  being  changed,  by  the  concurrent  act  of  the  city 
and  company,  from  the  overhead  to  the  underground  system,  and  it  cannot 
afterwards  be  limited  by  the  city.7 

The  authority  retained  by  a  city  to  regulate  the  manner  of  occupation  of  its 

1  2  Dill.on  Munic.  Corp.  (4th  ed.),  §698.       74   N.  W.    Rep.    67;    25    Amer.    &    Eng. 

2  Eels  v.  Amer.   Teleg.  &  Teleph.   Co.        Ency.   Law  755. 

(Sup.),  20  N.  Y.  Supp.  600.  6Chesp.,  etc.,  Teleph.  Co.  v.   McKen- 

3  Magee  v.  Overshiner  (Ind.),  49  N.  E.       zie,  74  Md.  36. 

Rep.  951  [1898].  7  Commonwealth  v.  Warwick  (Pa.),  40 

4  25  Amer.  &  Eng.  Ency.  Law  754,  755.       A.  Rep.  93  [1898]. 
6Jaynes  v.  Omaha  St.  Ry.  Co.  (.Neb.), 


§817.          OPERATIONS  PRELIMINARY    TO    CONSTRUCTION.  546 

streets  by  a  telephone  company  includes  the  power  to  compel  adoption  from 
time  to  time  of  all  reasonable  and  generally  accepted  improvements  which  tend 
to  decrease  the  obstruction  of  the  streets  or  to  increase  the  safety  or  conven- 
ience of  the  public.1 

The  Laws  of  New  York  1886,  chap.  40,  sec.  i,  provide  as  follows: 
"  Whenever  any  wire  or  cable  used  for  any  telegraph,  telephone,  electric  light, 
or  other  electric  purpose,  or  for  the  purpose  of  communication  otherwise  than 
by  the  aid  of  electricity,  is  or  shall  be  attached  to  or  does  or  shall  extend  upon 
or  over  any  building  or  land,  no  lapse  of  time  whatever  shall  raise  a  presump- 
tion of  any  grant  of,  or  justify  a  prescription  of  any  perpetual  right  to  such 
attachment  or  extension."  The  furnishing  of  light  to  citizens  is  a  sufficient 
public  use  to  sustain  the  grant  by  a  city  of  the  right  to  erect  wires  and  poles 
in  the  streets  for  furnishing  electric  light.  An  ordinance  granting  such  a  right 
cannot  be  repealed  or  changed  in  the  absence  of  a  reservation  therein  of  the 
right  so  to  do.2  '  But  in  New  York  such  wires  and  poles  constitute  unlawful 
obstructions,  which  the  corporation  may  remove  after  they  cease  to  be  used.3 

817.  Telegraph  Company's  Liability  for  Injuries  by  Lines  and  Poles. 
— Where  the  company  has  acquired  no  right  to  occupy  the  street  with  its  lines, 
its  occupation  thereof  is  unlawful  and  amounts  to  a  public  nuisance,  and 
abutting  "owners  may  have  an  injunction  against  it  or  they  may  bring  an 
action  for  damages.4 

Where  a  company  acted  upon  the  assumption -that  it  had  the  legal  right  of 
constructing  its  line  on  a  road  without  asking  or  obtaining  the  consent  of 
abutting  owners,  or  seeking  to  acquire  its  rights  by  negotiation  or  condem- 
nation, such  abutting  owners  are  not  estopped  on  the  ground  of  acquiescence 
from  maintaining  an  action.5 

A  grant  of  a  right  of  way  along  the  street  confers  upon  a  telegraph  or  tele- 
phone company  no  right  to  trespass  upon  private  property  abutting,  as  to  cut 
the  limbs  of  trees  projecting  over  the  sidewalk,  or  so  to  place  its  poles  as  to 
incommode  or  injure  the  public  in  the  use  of  the  street.  For  such  trespasses 
the  company  is  liable  in  damages.6  However,  it  has  been  held  that  a  tele- 
phone company  cannot  be  required  to  locate  its  poles  so  as  to  provide  against 
all  possible  injury  that  might  happen  under  extraordinary  circumstances.7 

Where  a  telephone  or  telegraph  company  occupies  private  property  with 
its  poles  and  wires,  the  owner  of  such  property  is  entitled  to  compensation  for 
the  injuries  which  he  surfers.  A  right  to  occupy  one's  land  with  such  poles 

Commonwealth   v.  Warwick  (Pa.),  40  roth    v.  Manhattan  R.   Co.,  122  N.  Y.    I. 

Atl.  Rep.  93  [1898].  But  see  Western   Union  Tel.  Co.   v.   Bul- 

2  Levis  v.  Newton  (C.   C.  S.   D.   Iowa),  lard   (Vt.),  31  Atl.   Rep.    286.    and  York 

75  Fed.  Rep.  884.  Teleph.  Co.  v.   Keesey  (Com.  PL),  5  Pa. 

8  Hempstead  v.  Ball  Electric  Light  Co.  Dist.  Rep.  366. 

(N.  Y.),  9  App.  Div.  48.  «25  Amer.  &  Eng.   Ency.  Law  755,  and 

*  25  Amer.  &  Eng.  Ency.  Law  755.  cases  cited. 

5  Blashfield    v.    Empire    State   Teleph.  7  Sheffield  v.  Cent.  Union  Teleph.  Co., 

Co.  (Sup.),   18   N.  Y.  Supp.   250;  Abend-  36  F-d.  Rep.  164. 


547  TELEGRAPH  AND    TELEPHONE   LINES.  §8l8. 

and  wires  can  be  acquired  only  by  contract  or  by  condemnation  proceedings. 
If  the  wires  extend  over  one's  land,  even  without  any  actual  occupation  of  the 
soil,  the  owner  thereof  is  entitled  to  compensation.  Doubtless  in  such  a  case 
the  damages  assessed  would  be  merely  nominal,  and  it  may  even  be  doubted  if 
the  courts  would  recognize  such  an  injury.1 

In  the  present  day,  when  telephone  and  telegraph  wires  are  so  likely  to 
become  crossed  with  transmission-wires  of  high  potential,  a  telephone  or  tele- 
graph wire  strung  above  or  over  a  man's  house  or  estate  is  a  much  more  serious, 
if  not  dangerous,  matter  than  it  was  ten  years  ago,  and  damages  .might  be 
assessed  to  compensate  for  the  risk  assumed  by  having  such  a  wire  over  one's 
possessions.2 

818.  Telegraph  and  Telephone  Line  on  Railroad  Right  of  Way.  _  A 
telegraph  or  telephone  line  upon  a  railroad  right  of  way  is  an  additional 
burden  upon  the  land  for  which  the  original  owner  of  the  land,  if  he  retain  the 
fee,  may  recover  additional  compensation.3 

Where  a  railroad  company  condemns  or  purchases  a  right  of  way  it  takes 
that  right  of  way  for  the  purpose  of  location,  construction,  and  operation  of 
its  road  and  for  other  purposes  incident  thereto.  If,  therefore,  in  the  opera- 
tion of  the  railroad  it  require  the  use  of  a  telegraph  line,  it  may  erect  such  a 
line  upon  its  right  of  way  without  being  subject  to  claims  for  additional  com- 
pensation, if  the  line  be  reasonably  necessary  for  the  proper  operation  of  the 
road.4 

A  telegraph  line  subjects  the  easement  of  a  right  of  way  of  a  railroad  com- 
pany to  an  additional  servitude  for  which  the  company  itself  is  entitled  to 
compensation  under  constitutional  provision  against  the  taking  of  private  prop- 
erty. When  a  legislative  act  provides  that  telegraph  companies  may  construct 
their  lines  "  along  and  parallel  to  any  of  the  railroads  of  the  state,"  it  does  not 
authorize  the  condemnation  of  a  right  of  way  by  a  telegraph  company  along 
and  upon  the  right  of  way  of  any  railroad  company.5 

Where  the  lines  of  a  telegraph  company  have  been  erected  upon  the  right 
of  way  of  a  railroad  company  under  a  contract  which  provides  that,  the  railroad 
company  shall  become  entitled  to  the  property,  upon  dissolution  or  discontinu- 
ance of  operations  by  the  telegraph  company,  the  right  of  way  of  the  telegraph 
company  is  lost  by  the  surrender  of  its  charter  just  prior  to  the  expiration  of 
the  same  and  a  reincorporation  under  a  subsequent  statute,  even  though  such 
statute  provides  that  the  new  company  shall  take  all  the  property  of  the  old 
company.6 


v.   American   Teleph.   Co.,  41  R.  I.  688. 

N.  J.  Eq.  35.  5  Postal  Tel.  Cab.  Co.  v.  Norfolk,  etc., 

1  See    Plummer    v.    Gloversville     Elec.  R.  Co.,  88  Va.  920;  New  York  State,  etc., 

Co.  (N.  Y.),  20  App.  Div.  527  [1897!.  R.  Co.  v.  Cent.  Union  Tel.   Co.,  21  Hun 

3  25  Amer.  &  Eng.  Ency.   Law   756  and  (N.  Y:)  261. 

cases  cited.  6  Latrobe  v.  Western   Tel.  Co.,  74  Md. 

4  Western   Tel.    Co.   v.    Rich,    19    Kan.  232;    Western    Telegraph    Co.    v.    Balti- 
517;  Taggart  v.   Newport  St.   R.  Co.,   16  more,  etc.,  R.  Co.,  67  Md.  211. 


§819.  OPERATIONS   PRELIMINARY    TO    CONSTRUCTION.  548 

A  license  by  a  railroad  company  to  maintain  a  telegraph  line  along  its  road 
so  long  as  the  licensee  exists  as  a  telegraph  company  expires  with  the  expira- 
tion of  the  telegraph  patents  held  by  the  licensee,  and  a  reincorporation  does 
not  affect  the  case.1 

819.  No  Exclusive  Rights  for  Telegraph  Lines  on  Railroads. — There  is 
nothing  to  prevent  a  telegraph  company  from  acquiring  a  right  of  way  by  con- 
tract with  a  railroad  company  over  its  right  of  way,  though  it  cannot  contract 
for  an  exclusive  right.      Such   exclusive  rights  are  not  favored  in  law,  and  a 
railroad  company,  usually  having  nothing  more  than  an  easement  in  the  land 
over  which  its  right  of  way  passes,  has  no  power  to  grant  exclusive  privileges 
as  to  it.2 

A  railroad  company  cannot  grant  to  a  telegraph  company  the  sole  right  to 
construct  a  line  over  its  right  of  way  so  as  to  exclude  other  companies  whose 
lines  would  not  interfere  with  those  of  the  first  company.3  There  are  a  few 
decisions  to  the  contrary  where  contracts  for  the  exclusive  right  to  occupy  the 
right  of  way  of  a  railroad  company  have  been  upheld.4  Such  a  contract  is  not 
void  so  far  as  it  excludes  other  telegraph  companies  from  poles  erected  upon 
the  right  of  way  and  occupied  by  one  telegraph  company.5 

A  contract  by  a  railroad  company  not  to  construct  or  allow  to  be  con- 
structed another  telegraph  line  along  or  upon  its  right  of  way  was  held  not  void 
as  against  public  policy.6  Since  the  passage  of  an  act  of  Congress7  a  state  can- 
not grant  to  a  telegraph  company  exclusive  rights  in  a  right  of  way  of  a  rail- 
road within  the  state.  The  statute  is  a  prohibition  of  all  state  monopolies  in 
this  particular.8 

820.  Government  Grants  of  Rights  of  Way. — By  statute  of  the  United 
States  a  right  of  way  is  granted  over  the  public  lands  and  the  military  or  post 
roads  to  all  telegraph  companies  complying  with  certain  conditions.     Any  com- 
pany organized  under  the  laws  of  any  state,  under  these  statutes,  has  the  right  to 
construct,  maintain,  and  operate  its  telegraph  lines  over  any  part  of  the  public 
domain,  under  or  across  any  of  its  navigable  streams  or  waters,  provided  such 
lines  are  not  placed  so  as  to  obstruct  navigation  or  interfere  with  the  proper 
use  of  military  or  post  roads.9     Stone,  timber,  and  other  materials  for  its  poles, 
stations,  and  other  necessary  uses  in  constructing  its  line  maybe  taken  from  the 
public  lands  through  which  the  line  passes,  and  the  company  may  pre-empt 
such  portions  of  the  public  lands  as  may  be  necessary  for  its  stations,  not  exceed- 
ing forty  acres  for  each  station,  such  stations  not  to  be  within  fifteen  miles  of 

1  Western    Union     Tel.    Co.    v.     Balti-       Un.  Tel.  Co.,  17  Sup.  Ct.  Can.  151. 
more,  etc.,  R.  Co.,  20  Fed.  Rep.  572.  5  Western    Un.    Tel.    Co.    v.    Chicago, 

2  Pacific  Post.   Tel.   Cab.   Co.  v.  West.       etc.,-  R.  Co.,  86  111.  246. 

Union  Tel.  Co.  (Cir.   Ct.),   50  Fed.   Rep.  6  Western    Un.    Tel.    Co.    v.    Atlantic, 

493;  25  Amer.  &  Eng.  Ency.  Law  757.  etc.,  Tel.  Co.,  7  Biss.  (U.  S.)  367. 

3  United     States     Rev.    Stat.,    §    5263;  7  Rev.  Statutes  U.  S.  5263-5268. 
Western   Union   Tel.    Co.   v.  Amer.   Un.           8  Pensacola    Tel.    Co.   v.  Western   Un. 
Tel.  Co.  (U.  S.),  9  Biss.  72.  Tel.  Co.,  96  U.  S.  I. 

4  Canadian    Pac.    R.   Co.     v.    Western  9  United  States  Rev.  Statutes,  §  5263. 


549  TELEGRAPH  AND    TELEPHONE   LINES.  §  821. 

each  other.1  These  rights  and  privileges,  however,  are  not  to  be  transferred 
by  any  company  acting  thereunder  to  any  other  corporation,  association,  or 
person.2 

For  these  privileges  and  grants,  telegrams  between  the  several  departments 
of  the  government  and  their  officers  and  agents  have  priority  over  all  other 
business,  and  at  such  rates  as  the  Postmaster-General  may  fix.  Any  company 
refusing  to  comply  with  the  provisions  of  this  statute  may  not  be  paid  any  part 
of  the  appropriations  of  the  several  departments  of  the  government.3 

In  these  statutes  the  United  States  reserves  the  right  to  purchase  all  tele- 
graph lines  and  other  property  at  an  appraised  value  to  be  ascertained  by  five 
competent  disinterested  persons,  two  to  be  chosen  by  the  Postmaster-General, 
two  by  the  company,  and  one  by  these  four,  and  before  any  telegraph  com- 
pany may  exercise  any  of  the  powers  and  privileges  conferred  it  must  file  with 
the  Postmaster-General  its  written  acceptance  of  the  restrictions  and  obliga- 
tions required.4  A  penalty  is  provided  of  not  less  than  one  hundred  dollars 
nor  more  than  one  thousand  dollars  for  every  refusal  or  neglect  to  transmit  any 
proper  message  offered  by  the  government  or  its  officers  or  agents  concerning 
government  affairs.5  , 

821,  Ways  that  are  Post-roads. — Another  United  States  statute  declares 
all  railroads  to  be  post-roads.6 

A  railroad  being  a  post-road,  it  cannot,  therefore,  grant  any  telegraph 
company  an  exclusive  right  of  way.7 

These  United  States  statutes  were  enacted  under  the  congressional  powers 
of  control  over  interstate  commerce,  and  their  constitutionality  may  not  be 
doubted;  they  have  superseded  all  conflicting  state  legislation  on  the  subject.8 
A  statute,  however,  has  been  held  not  to  authorize  telegraph  companies  to 
occupy  a  railroad  company's  right  of  way  without  compensation,  but  the  privi- 
leges under  the  act  are  subject  to  the  prior  rights  of  other  companies.9 

Revised  Statutes  1866,  §§  5263,  5268,  5269,  authorizing  telegraph  com- 
panies complying  with  its  terms  to  construct  and  maintain  their  lines  along 
and  over  all  post-roads  of  the  United  States,  and  Revised  Statutes,  §  3964, 
making  all  railroads  post-roads,  do  not  empower  a  telegraph  company  to 
occupy  the  right  of  way  of  a  railroad  with  its  line  without  the  consent  of  the 
railroad  company,  or  a  contract  with  a  prior  owner  which  is  binding  upon  it.10 

A  court  of  equity  has  no  power,  on  the  ground  of  public  necessity,  to  effect 

1  United  States  Rev.  Statutes,  §  5264.         etc.,  R.  Co.,  19  Fed.  Rep.  660;  Union  Trust 

2  United  States  Rev.  Statutes,  §  5265.         Co.  v.  Atchison,  etc.,  R.   Co.  (N.  M.),  43 
8  United  States  Rev.  Statutes,   §  5266.        Pac.    Rep.    701;    Pensacola    Tel.    Co.    v. 

And  see  United  States  v.  Union   Pac.  R.,  Western  Un.  Tel.  Co.,  96  U.  S.  I. 

45  Fed.  Rep.  221.  825  Amer.  &  Eng.  Ency.  Law  759. 

4  United  States  Rev.   Statutes,  §   5267,  9  Atlantic,    etc.,   Tel.   Co.   v.   Chicago, 

5268.  etc.,  R.  Co.,  6  Biss.  (U.  S.)  158;  Western 

5 United  States  Rev.  Statutes,  §  5269.  Un.  Tel.   Co.  v.   Amer.   Un.   Tel.   Co.,  9 

6  United  States   Rev.  Statutes,  §  3964.  Biss.  (U.  S.)  72. 

And  see  Postal  Laws,  vol.  18,  page  865.  10  Western    Un.   Tel.  Co.  v.  Ann  Arbor 

7  Western  Un.   Tel.    Co.    v.   Baltimore,       R.  Co.,  90  Fed.  Rep.  379. 


§  822.  OPERATIONS  PRELIMINARY    TO    CONSTRUCTION. 

an  equitable  condemnation  of  an  easement  of  way  for  a  telegraph  line  over  the 
right  of  way  of  a  railroad  on  which  it  was  built  and  operated  under  a  contract 
with  a  prior  owner  of  the  road,  which  contract  has  been  terminated  by  the 
sale  of  the  road  on  foreclosure  of  a  mortgage  antedating  such  contract.1 

The  telegraph  company  must  obtain  the  consent  of  the  owners  of  the  right 
of  way  or  condemn  it  for  telegraph  purposes  and  make  compensation  therefor.2 

The  streets  of  the  District  of  Columbia  have  been  declared  to  be  post-roads 
within  the  meaning  of  the  statute,  and  telegraph  companies  may  construct  their 
lines  on  sueh  streets  without  compensation  to  abutting  owners.3 

822.  State  Statutes  Superseded  by  United  States  Laws. — There  are  state 
statutes  which  grant  rights  of  way  to  telegraph  companies  under  certain  con- 
ditions and  restrictions,  but,  as  before  stated,  they  are  in  certain  particulars 
superseded  by  the  United  States  statutes.     Some  of   the  state  statutes  also^ 
determine  the  rights  of  the  telegraph  and  telephone  companies  to  place  their 
poles  along  city  streets,  as  well  as  the  proceedings  necessary  for  the  determi- 
nation of  such  a  right  of  way  and  for  the  determination  of  the  compensation 
to  be  paid  to  the  owners  or  abutting  owners  of  the  property  over  which  the 
line  passes.4     It  has  been  declared  that  such  statutes  authorizing  the  construc- 
tion of  telegraph  lines  on  state  or  county  roads  do  not  authorize  the  occupa- 
tion of  the  highway  without  compensation  to  the  abutting  owners  who  have 
retained  the  fee  of  the  soil  of  the  highway.5 

Though  a  state  may  grant  exclusive  privileges  between  certain  points  to  a 
telegraph  company,  yet  such  a  grant  should  be  held  subject  to  prior  acquired 
rights  of  other  companies.6 

823.  Restrictions  and  Conditions  Imposed  by  Laws  and  Ordinances. — 
In  general  the  law  applicable  to  rights  of  way  of  railroad  companies,  pipe  lines, 
and  other  guasi-public  institutions  applies  to  rights  of  way  of  telegraph  com- 
panies; and  it  has  been  held  that  the  law,  or  a  statute,  applicable  to  a  telegraph 
company  is  equally  applicable  to  a  telephone  company  at  least  so  far  as  the  right 
of  way  or  the  construction  of  its  lines  are  concerned.    This  statement,  of  course, 
is  subject  to  the  modifications  which  arise  from  the  difference  in  the  construction 
demanded,  the  uses  to  which  the  lines  are  put,7  or  the  special  statutes  which 
have  been  passed  by  the  state  and  the  federal  government  in  regard  to  tele- 
graph and  telephone  companies.     Thus  in  the  state  of  New  Jersey  the  law 
requires  that  the  size  of  the  poles  as  well  as  the  positions  in  which  they  are 
to  be  placed  should  be  indicated.8 

1  Western  Union  Tel.  Co.  v.  Ann  Arbor  5  Western    Un.   Tel.   Co.    v.    Williams, 

R.  Co.,  90  Fed.  Rep.  379  [1898].  86  Va.  696;  Postal  Tel.  Cable  Co.  v.  Nor- 

2Amer.  Teleph.  Co.  v.    Pearce,  71  Md.  folk,  etc.,  R.  Co.,  88  Va.  920. 

535-  8  California,  etc.,  Tel.  Co.  v.  Alta  Tel. 

3  Hewett    v.   Western  Un.  Tel.   Co.,  4  Co.,  22  Cal.  398. 

Mackey  (D.  C.)  424.  725  Amer.  &  Eng.  Ency.  Law  760. 

*  See  25  Amer.  &  Eng.   Ency.  Law  760  8  Broome  v.  N.  Y.,  etc.,  Teleph.  Co. ,49 

and  cases  cited.  N.  J.  Law  624. 


55*  TELEGRAPH  AND    TELEPHONE   LINES.  §826. 

824.  Telegraph  Lines  across   Navigable  Waters. — In  order  for  a  tele- 
graph  company  to  secure  a  right  to  construct  its  right  of  way  across  navigable 
waters  under  United  States  statutes  it  will  be  required  to  file  with  the  Post- 
master-General its  written  acceptance  of  the  obligation  imposed  by  the  statutes.1 
And  the  company  must  not  interfere  with  the  opening  of  drawbridges  or  other- 
wise obstruct  navigation  in  the  construction  of  its  line  over  navigable  waters. * 
Such  telegraph  lines  when  laid  in  the  bottom  of  a  navigable  river  must  be  laid 
with  due  care  and  foresight.      A  company  has  been  held  liable  for  injuries  to 
vessels  by  having  their  anchors  caught  in  a  submarine  cable.3 

825.  Proceedings  to  Condemn  a  Right  of  Way. — In  some  states  the  laws 
require  that  a  company  shall   make  an  effort  to  contract  with  the  landowners 
before  resorting  to  condemnation  proceedings.     In  such  cases  the  company,  it 
seems,  need  only  make  a  proposition  to  the  landowners  and  wait  a  reasonable 
time  for  a  reply,  in  the  absence  of  which  it  may  condemn  a  right  of  way.4 
The  determination  of  the  compensation  due  to  a  railroad  company  for  a  right 
of  way  of  a  telegraph  line  fixed  by  the  commissioners  appointed  is  not  neces- 
sarily final.5 

In  condemning  a  right  of  way .  for  'a  telegraph  line  the  company  does 
not  acquire  the  fee  of  the  soil  and  use  of  the  land  except  for  the  purpose  of 
erecting  and  maintaining  its  telegraph  poles  and  wires.6  A  landowner  is  not 
to  be  deprived  of  his  use  of  the  land  except  so  far  as  such  use  is  inconsistent 
with  the  rights  of  the  company,  nor  is  he  bound  to  fence  his  land  from  the 
strip  condemned  for  a  right  of  way.6  A  grant  to  a  telephone  company  to  run 
and  maintain  wires  "  over  and  through  "  the  streets  does  not  include  permis- 
sion to  lay  them  underground.7 

826.  Liability  for  Negligence  in  Erecting  and  Maintaining  Telegraph 
Lines. — In  the  construction  of  its  line  a  telegraph  company  must  exercise 
proper  care  to  prevent  injuries  to  persons  using  the  street,  and  it  is  responsible 
for  all  injuries  which  result  by  reason  of  improper  construction  or  maintenance. 
If  a  pole  be  located  and  maintained  so  that  it  is  a  dangerous  obstruction 
in  a  street,  and  a  frightened  horse  run  against  it  to  the  injury  of  a  person  driv- 
ing, the  company  is  not  relieved  from  liability  because  the  city  authorized  its 
erection.8 

Wires  may  not  be  permitted  to  swing  down  so  low  as  to  obstruct 
travel  without  explaining  and  showing  that  it  was  not  negligence  on  the 
part  of  the  company.  If  guilty  of  negligence,  the  company  is  liable  for 

Chicago,   etc.,    Bridge    Co.     v.    Pac.  R.  Co.,  87  Va.  349;  Louisville,  etc.,  R.  Co. 

Mut.  Tel.  Co.,  36  Kan.  113.  v.  Postal  Tel.  Cab.  Co.,  68  Miss.  806. 

2  Pac.  Mut.  Tel.  Co.  v.  Chicago,  etc.,  6Lockie  v.  Mut.   Un.  Tel.  Co.,  103  111. 
Bridge  Co.,  36  Kan.  113.  401. 

3  City  of  Richmond,  43  Fed.  Rep.  85.  7  Commonwealth  v.  Warwick  (Pa.),  40 

4  Louisville,  etc.,  R.  Co.  v.  Postal  Tel.  Atl.  Rep.  93  [1898]. 

Cab.  Co.,  68  Miss.  806.  8  25  Amer.  &  Eng.  Ency.  Law  761. 

5  Postal  Tel.  Cab.  Co.  v.  Norwalk,  etc., 


§82/.          OPERATIONS  PRELIMINARY    TO    CONSTRUCTION.    -          552 

injuries  sustained  by  persons  from  being  thrown  down  or  out  of  moving 
vehicles,  or  for  injuries  from  shocks  from  electricity  due  to  the  wires  being 
charged  either  from  natural  or  artificial  sources.1  Such  companies  are  not 
liable  unless  the  proximate  cause  of  the  injury  is  due  to  its  negligence.  A 
company  may  not  be  required  to  anticipate  and  provide  against  extraordinary 
and  unexpected  storms.2  A  company  is  not  relieved  from  liability  by  the 
abandonment  of  its  property.3 

If  the  city  authorized  the  erection  of  poles  in  such  manner  and  place  that 
they  constitute  a  nuisance,  the  city  as  well  as  the  company  is  liable  xfor  the  in- 
juries resulting.  The  city  has  no  right  to  authorize  the  erection  of  poles  which 
are  dangerous  to  people  properly  using  a  street,  and  the  company  may  not 
claim  freedom  from  liability  on  the  ground  that  its  act  was  authorized  by  the 
city.4 

The  danger  attending  the  location  is  to  be  determined  by  the  jury.  It 
must  be  clearly  proved  that  the  location  of  poles  is  dangerous,  for  it  is  not 
sufficient  to  show  the  objects  of  danger.  Poles  erected  upon  a  highway  as  close 
as  possible  to  the  side,  so  as  not  to  have  the  cross-bars  extend  over  private  prop- 
erty, were  held  not  to  constitute  such  a  dangerous  location  as  would  entitle 
a  person  to  recover  for  injuries  to  a  runaway  horse.5 

The  ground  of  liability  is  the  negligence  of  the  company  in  constructing 
and  maintaining  its  lines.  It  is  not  liable  merely  because  of  the  presence  of 
its  lines  which  contribute  to  the  injury,  as  where  poles  and  wires  interfere  with 
the  operations  of  a  fire  company  and  prevent  the  extinguishment  of  a  fire.6 

An  electric-light  pole  in  a  village  street  has  been  adjudged  to  be  a  nuisance, 
in  an  action  against  the  village  for  damages  occasioned  thereby.  The  village, 
having  affirmatively  assented  to  the  location  of  the  pole,  had  no  recourse 
against  the  electric-light  company.  It  was  held  that  as  it  was  adjudged  that 
the  pole  was  a  nuisance  because  of  its  location,  and  not  because  of  the  use  to 
which  it  was  put,  the  plaintiff  and  the  electric-light  company  were  in  the  posi- 
tion of  joint  wrong-doers,  and  were  in  pari  delicto,  and  the  village  was  therefore 
held  not  entitled  to  claim  indemnity  or  contribution  from  the  electric-light 
company.7 

Ih  the  proof  of  improper  or  negligent  construction  of  telegraph  lines,  the 
general  rules  and  laws  of  negligence  prevail  in  matters  of  evidence,  burden  and 
proof,  etc. 

827.  Rights  Attending  a  Prior  Occupation  of  Right  of  Way. — In  the 
many  applications  of  electricity  which  have  recently  been  made  many  nice 

*25  Amer.  &  Eng.   Ency.  Law  761,  762,  Tel.  Co.,  21  Hun  (N.  Y.)  22;  Sheffield  v. 

.and  cases  cited.  Cent.  Un.  Tel.  Co..  36  Fed.  Rep.  164. 

2  Ward   v.    Atlantic,    etc.,   Tel.   Co.,  71  6  See  Cheffee  v.   Telephone,   etc.,  Con- 
.N.  Y.  81.  struction  Co.,  77  Mich.   625,  and  see  the 

3  Nichols  v.  Minneapolis,  33  Minn.  430.  Dissenting  Opinion;    and  see  Thompson 

4  25  Amer.  &  Eng.  Ency.  Law  762.  on  Electricity,  §  25. 

5  Roberts   v.  Western   Un.  Tel.  Co.,  77  7  Geneva,  Trustees  of,  v.  Brush  E.  Co. 
Wis.  589.     And  see  Allen  v.  Atlantic,  etc.,  (N.  Y.  ),  50  Hun  581  [i! 


553  TELEGRAPH  AND    TELEPHONE   LINES.  §  828. 

questions  of  law  have  been  presented  to  the  courts  which  have  not  been  defi- 
nitely settled,  and  many  more  are  destined  to  arise  which  have  not  yet  been 
adjudicated.  In  the  application  of  electricity  as  a  motive  power  on  street  rail- 
ways and  the  thousand  and  one  applications  to  domestic  purposes  there  is  a 
constant  source  of  danger  to  many  other  structures.  This  is  due  to  the  leakage 
and  return  of  the  electric  currents  to  its  source.  From  every  electric  motor 
driven  by  electricity  generated  at  a  station  there  is  a  return  current  which  may 
or  may  not  traverse  the  conductor  provided  for  it  on  its  return  to  the  generator. 
If  this  current  escape  from  the  return  conductor  provided,  it  may  traverse  steel 
and  iron  structures  in  which  the  connections  are  not  perfect,  and  this  results  in 
corrosion  of  the  material  of  the  structure,  and  frequently  ends  in  the  destruction 
of  its  usefulness. 

The  creation  of  a  powerful  current  of  electricity  in  a  conductor  has  a  con- 
siderable and  sometimes  injurious  effect  upon  other  conductors  and  currents  of 
electricity  in  the  vicinity.  A  current  of  electricity  of  high  potential  traversing 
a  trolley  wire,  or  conductor,  suspended  from  poles  along  a  street  may  induce 
such  currents  in  the  telegraph  or  telephone  wires  in  the  vicinity  as  to  destroy 
their  usefulness  for  the  purpose  for  which  they  were  erected;  and  if  by  accident 
such  conductor  charged  with  a  heavy  current  of  electricity  shall  come  in  con- 
tact with  a  telephone  or  telegraph  wire  which  was  not  intended  to  convey  such 
a  powerful  current,  it  may  cause  a  destruction  of  the  delicate  and  valuable 
apparatus  attached  to  the  telephone  or  telegraph  wire  or  may  lead  to  accidents 
resulting  in  death  of  persons  coming  in  contact  with  such  wires.  These  condi- 
tions raise  important  questions  as  to  the  rights  of  telegraph  and  telephone  com- 
panies to  enjoy  the  rights  of  way  upon  which  they  have  erected  their  lines,  and 
questions  as  to  what  damages  may  be  recovered  for  such  injuries  caused  by 
other  companies  occupying  rights  of  way  in  the  immediate  vicinity  of  their 
lines.  Suits  have  been  brought  to  enjoin  other  companies  from  placing  their 
wires  charged  with  heavy  currents  of  electricity  in  close  proximity  to  telegraph 
and  telephone  wires,  and  from  using  the  earth  as  a  return  circuit  for  such  cur- 
rents. As  street  railways  using  electric  motive  power  have  their  rails  for  a 
return  conductor,  and  since  such  rails  are  reasonably  suitable  for  the  purpose, 
the  burden  of  erecting  a  return  current  circuit  has  usually  been  imposed  upon 
the  telephone  companies.1 

828.  Interference  with  Telephone  Lines  by  Induction. — Interference  with 
telephone  lines  due  to  induction  from  the  proximity  of  parallel  wires  convey- 
ing a  stronger  current  is  easily  prevented,  and  a  court  of  equity  will  grant  relief 
against  it  upon  proper  showing  by  the  telephone  company.  The  right  to  such 
relief  may  depend  upon  whether  the  company  complaining  has  a  prior  right  of 
way  over  the  space  covered  by  its  wires,  and  as  against  the  defendant  company. 

1  See  Keasbey  on  Electric  Wires  139;  vliet  Tpk.  Co.,  135  N.  Y.  393,  61  Hun 
Thompson  on  Electricity  (§  43,  50),  (N.  Y.)  141;  Cumberland  Teleph.  Co.  v. 
etc.;  Hudson  Riv.  Teleph.  Co.  v.  Water-  United  Elec.  R.  Co.,  42  Fed.  Rep.  273. 


§  829.  OPERATIONS   PRELIMINARY    TO    CONSTRUCTION.  554 

A  company  which  owns  a  prior  right  of  way  will  not  be  enjoined  from  its  bene- 
ficial use  in  favor  of  a  subsequent  occupant. 1 

A  telephone  company  which  has  a  prior  right  of  way  upon  a  street  has  been 
granted  an  injunction  against  an  electric-light  company  from  constructing  its 
lines  within  such  a  distance  as  should  interfere  with  the  effective  and  successful 
use  of  the  telephone  wires,  and  from  erecting  its  lines  in  such  way  as  to  be  a 
source  of  danger  to  such  telephone  lines  in  case  of  accident  from  breakage  or 
other  accidents  which  might  bring  the  two  lines  in  contact.^ 

In  another  case  an  injunction  was  denied  because  it  appeared  from  the  testi- 
mony that  there  would  be  no  sensible  diminution  in  the  current  of  a  telegraph 
line  due  to  or  caused  by  induction  from  close  proximity  of  the  wires,  and  that 
the  danger  to  linemen  engaged  in  repairing  the  telegraph  lines  could  be 
avoided  by  having  the  electric-light  current  so  that  it  could  be  shut  off  on 
notice,  which  would  only  be  required  during  the  daytime ;  and,  further,  that 
the  danger  from  falling  wires  in  storms  was  too  uncertain  to  be  considered. 
A  circumstance  of  the  case  was  that  an  injunction  was  granted  with  the 
limitations  just  stated,  with  the  reserved  right  to  modify  its  decisions  after 
experiment.3 

829,  Protection  of  Wires  from  Contact  with  Other  Wires. — It  has  been 
held  a  duty  of  the  telephone  company  so  to  construct  its  line  as  not  to  inter- 
fere with  the  free  use  of  the  street  by  the  public  for  purposes  of  travel  and 
transportation,  and   that   this  duty  includes  operations  necessary  to  keep  its 
wires  from  coming  in  contact  with  those  of  the  street  railway  subsequently 
occupying  the  street.4 

830.  Disturbance  and  Damage  from  Conduction. — In  the  matter  of  dis- 
turbance from  conduction   or  leakage  of  electricity  and    which  results  from 
the  use  of  an  imperfect  return  circuit  or  from  the  use  of  the  earth  as  a  return 
conductor,  the  question  as  to  the  prior  right  of  way  and  occupation  has  been 
considered  as  material,  and  injunctions  against*  railroad  companies 'have  been 
denied  in  all  cases.     The  decisions   have  rested  on  the  ground  that  when  a 
person  or  corporation  makes  a  lawful  use  of  his  own  property  or  of  a  public 
franchise,  anql  in  so  doing  injury  results  to  another,  the  question  of  liability 
will  depend  upon  whether  use  has  been  made  of  the  best  known  means.      It  is 
not  required  that  one  should  adopt  exclusive  devices  or  the  most  recent  inven- 
tions when  the  party  injured  could  protect  himself  by  the  use  of  an  effective  and 
inexpensive  device.     When  the  use  of  a  metallic  circuit  by  either  party  to  the 
suit  would  prevent  interference  between  the  two  currents,  and  when  the  tele- 
phone company  could  use  such  a  circuit  by  adopting  a  safe  and  inexpensive 
device,  while  the  railroad  company  could  do  so  only  at  a  very  great  expense, 

1  25  Amer.  &  Eng.  Ency.  Law  765.  L.  Co.,  14  Cin.  Wkly.  Bull.  327. 

2  Nebraska  Teleph.   Co.   v.   N.  Y.  Gas-  *  Cent.    Pa.    Teleph.    Co.     v.     Wilkes- 
light  Co.,  27  Neb.  284.    And  see  Keasbey  Barre,  etc.,  R.  Co.,  II   Pa.  Co.   Ct.   Rep. 
on  Electric  Wires  142.  417. 

3  West.  Un.  Tel.  Co.  v.  Champion  Elec. 


555  TELEGRAPH  AND    TELEPHONE  LINES.  §  831. 

and  the  question  was  practically  as  to  which  company  should  undergo  the 
expense  of  such  a  circuit,  the  court  denied  the  prayer  for  an  injunction  against 
the  railroad  company  upon  the  following  grounds:  (i)  that  the  railroad 
company  was  making  a  lawful  use  of  its  franchise  in  the  manner  contem- 
plated* by  the  statute  granting  it,  and  that  such  use  cannot  be  considered  as  a 
nuisance  in  itself;  (2)  that  in  the  exercise  of  such  a  franchise  no  negligence 
was  shown,  no  wanton  or  unnecessary  disregard  of  the  rights  of  the  telephone 
company;  (3)  that  the  damages  occasioned  to  the  telephone  company  were 
not  the  direct  consequences  of  the  construction  of  the  electirc  road,  but  were 
accidental  damages  resulting  from  its  operation  and  were  not  recoverable.1  In 
another  case,  where  the  line  of  a  telephone  company  had  been  erected  six 
years  prior  to  the  adoption  by  a  street-railway  company  of  electricity  as  the 
motive  power  under  a  single-trolley  system,  and  where,  in  consequence  of  the 
trolley  system,  the  telephone  line  was  injured  by  the  more  powerful  current  of 
the  electric  railway  escaping  in  large  quantities  and  passing  through  the  earth 
and  the  telephone  lines,  it  was  held  that  an  injunction  would  lie  against  the 
electric-railway  company,  and  that,  as  it  appeared  that  the  injury  to  the  tele- 
phone company's  lines  could  be  prevented  by  the  use  of  the  double-trolley 
system,  the  injunction  would  hold.  It  was  also  held  that  the  electric-railway 
company,  though  it  had  adopted  a  system  which  was  the  most  efficient  and 
economical,  would  not  be  permitted  to  employ  it  to  the  injury  of  the  telephone 
company,  particularly  if  such  injury  could  be  remedied  by  the  electric  com- 
pany at  less  expense  than  the  cost  of  changing  the  telephone  company's 
system,  and  that,  if  both  parties  stood  equal  at  law,  the  telephone  company 
had  the  better  equity  by  priority  of  time,  because  of  the  fact  that  it  had 
employed  electricity  some  six  years  earlier  than  the  railway  company.2 

The  use  of  terminal  poles  by  a  telephone  company  being  the  system  here- 
tofore adopted,  the  burden  of  showing  that  there  is  a  better  in  general  accept- 
ance and  reasonably  adoptable  by  the  company,  so  as  to  authorize  the  refusal 
of  permits  for  further  poles,  is  on  the  city.3 

831.  Electric-railway  Lines  and  Telegraph  and  Telephone  Circuits. — 
The  foregoing  case  was  practically  overruled  by  the  Court  of  Appeals,  which 
held  that  when  a  company  was  authorized  to  construct  and  operate  its  lines 
upon  streets  and  highways  upon  the  express  condition  that  they  should  not  be 
so  constructed  as  to  incommode  the  public  use,  it  was  part  of  the  company's 
compact  with  the  State  that  the  maintenance  of  its  lines  should  not  prevent  the 
adoption  of  any  safe,  convenient*,  and  expeditious  mode  of  travel,  such  as  the 
electric-railway  system  was  shown  to  be ;  that  the  railway  was  occupying 
the  streets  in  such  a  manner  as  to  expedite  public  travel  and  permit  the  public 
use  to  which  the  streets  were  devoted;  that  the  telephone  company's  franchise 

Cumberland    Teleph..    etc.,    Co.    v.  vliet  Tpk.  &  R.  Co.,  56  Hun  (N.  Y.)  68, 

United  Elec.   R.  Co.,  42  Fed.   Rep.  273.  121  N.  Y.  397,  61  Hun  (N.  Y.)  141. 

And  see  Hoyt  v.  Jeffers,  30  Mich.  181.  'Commonwealth  v.  Warwick  (Pa.),  ^o 

2  Hudson   Riv.   Teleph.  Co.  v.   Water-  Atl.  Rep.  93  [1898]. 


§831- 


OPERATIONS  PRELIMINARY    TO    COXS7*RUCTION. 


556 


was  of  a  subordinate  character,  and  that  it  could  not  complain  that  the  electric- 
railway  system  adopted  interfered  with  the  operation  of  its  lines ;  and  it  was 
therefore  held,  as  in  the  decision  of  the  United  States  court  last  cited,  that 
the  electric  railway  might  operate  its  road  by  the  single-trolley  system,  and 
the  telephone  company  was  left  to  protect  itself  from  the  ill  effects  "of  that 
system.1 

It  should  be  noted  that  herein  was  a  circumstance  itot  always  existing  in 
such  cases,  viz.,  that  the  telephone  company  was  so  to  construct  and  operate 
its  lines  as  not  to  incommode  the  public  use;  and  it  would  seem  that  the  case 
was  reversed  upon  this  condition.  In  this  case  both  parties  were  making  use 
of  the  earth  as  a  return  circuit,  and  the  electric-railway  company  contended 
that  it  had  an  equal  right  with  the  telephone  company  to  make  use  of  its  own 
property  and  of  the  laws  of  nature  in  the  conducting  of  its  business,  just  as  all 
are  entitled  to  the  common  use  of  air  and  light,  which  in  a  certain  sense  is 
undoubtedly  true.  The  court,  however,  went  on  and  said  further  that  the 
electric-railway  company  "does  not  leave  the  natural  forces  of  nature  free  to 
act,  unaffected  by  any  interference  on  its  part.  It  generates  and  accumulates 
electricity  in  large  and  turbulent  quantities,  and  then  allows  it  to  escape  upon 
the  premises  occupied  by  the  plaintiff,  to  its  damage.  We  are  not  prepared 
to  hold  that  a  person  even  in  the  prosecution  of  a  lawful  trade  or  business, 
upon  his  own  land,  can  gather  there  by  artificial  means  electricity  and  dis- 
charge it  in  such  volume  that,  owing  to  the  conductive  properties  of  the  earth, 
it  will  be  conveyed  upon  the  grounds  of  his  neighbor  with  such  force  and  to 
such  an  extent  as  to  break  up  his  business,  or  impair  the  value  of  his  property, 
and  not  be  held  for  the  resulting  injury. ' '  2 

An  injunction  by  a  telephone  company  against  an  electric-railway  company 
was  denied  by  the  court  of  Tennessee,  but  the  latter  company  was  required  to 
execute  a  bond  to  indemnify  the  telephone  company  for  any  damages  awarded 
against  it.3 

Where  a  telephone  company  had  acquired  a  prior  right  to  the  use  of  the 
streets  and  had  expended  money  on  the  strength  of  such  right,  the  Ohio  courts 
held  that  an  electric -rail  way  company  had  no  right  to  disturb  it  unless  it  could 
be  shown  that  there  was  no  other  way  in  which  the  latter  company  could 
enjoy  its  franchise  to  locate  and  operate  an  electric  road.4  The  Superior 
Court  reversed  this  decision  for  the  reason  explained  in  the  preceding  cases.5 


1  Hudson  Riv.  Teleph.    Co.   v.  Water- 
vliet  Tpk.  &  R.  Co.,  135  N.  Y.  393. 

2  Hudson  Riv.  Teleph.  Co.   v.  Water- 
vliet  Tpk.  &  R.  Co.,  135  N.  Y.  409,  410. 

3E.  Tenn.  Teleph.  Co.'  v.  Chatta- 
nooga Elec.  St.  R.  Co.  (Tenn.),  3oAmer. 
&  Eng.  Corp.  Cas.  562. 

*  City,  etc.,  Tel.  Co.  v.  Cincinnati, 
etc.,  R.  Co.  (Ohio),  23  Wkly.  L.  Bull. 
165. 


6  Cincinnati,  etc.,  R.  Co.  v.  City,  etc., 
Teleph.  Assn.,  48  Ohio  St.  390.  And  see 
Wisconsin  Teleph.  Co.  v.  Eau  Claire  St. 
R.  Co.  (Wis.),  Cir.  Ct.  of  Eau  Claire  Co. 
[1890];  Rocky  Mt.  Bell  Teleph.  Co.  v. 
Salt  Lake  City  R.  Co.  (Utah),  Dist.  Ct. 
for  3d  Dist.  [1889];  East  Tenn.  Teleph. 
Co.  v.  Knoxville  St.  R.  Co.  (Tenn.),  Ch. 
Ct.  of  Knox  Co.  [1890].; 


557  TELEGRAPH  AND    TELEPHONE   LINES.  §  834. 

832.  Complainant  must  have  Exercised  Care,— To  be  entitled  to  damages 
or  to  an  injunction. to  prevent  injury  the  complainant  will  be  required  to  show 
that  he  has  exercised  reasonable  care  to  protect  himself  and  to  prevent  the 
injury,  or  that  it  could  not  have  been  prevented  by  exercise  of  reasonable 
effort  on  his  part.1 

In  consequence  of  the  development  of  electrical  appliances  and  inventions 
the  decisions  upon  questions  of  electricity  and  its  control  cannot  be  considered 
as  even  fairly  well  settled,  and  the  development  of  electrical  appliances  and  the 
effect  upon  the  thousands  of  interests  which  prevail  may  require  changes  in 
the  statements  of  the  law  as  maintained  and  applied  by  the  courts  thus  far  and 
as  set  forth  in  the  text.'^ 

833.  Telegraph  Lines  are  Avenues  of  Interstate  Commerce. — Like  rail- 
road and  telegraph  companies  whose  lines  extend  from  one  state  to  another, 
telegraph  companies  afford  avenues  of  interstate  commerce  and  are  agents  of 
the  general  government,  in  which  capacity  they  are  not  subject  to  the  jurisdic- 
tion of  the  state.     The  rule  with  respect  to  such  lines  is  the  same  as  that  ap- 
plied to  interstate  railroads.      The  state  may  not   pass  laws  which  interfere 
with  the  exclusive  power  of  Congress  over  interstate  commerce.      This  control 
which  the  Federal  Government  has  assumed  over  telephone  and  telegraph  lines,, 
such  as  authority  to  operate  such  lines  and  to  occupy  military  or  post-roads, 
does  not  deprive  a  state  of  the  power  to  require  that  in  large  cities  all  such 
lines  should  be  placed  underground  in  proper  subways.      Such  a  statute  is  a 
valid  and  proper  exercise  of  the  state's  power  of  police  regulation  and  cannot 
be  allowed  to  conflict  with  the  powers  of  Congress.3 

A  city  council  has  no  authority  to  pass  an  ordinance  levying  a  license-fee 
for  telephone  instruments  in  the  city  which  are  used  by  a  telephone  company 
for  the  purpose  of  carrying  on  interstate  business  of  the  company.4 

Laws  in  some  states  have  been  passed  requiring  that  all  electric  wires  and 
conductors  in  cities  shall  be  placed  underground  in  the  streets,  and  be  subject 
to  the  control  of  local  municipal  authorities.  Such  an  act  has  been  held  con- 
stitutional and  within  police  regulation,  and  as  not  impairing  the  rights  of  a 
corporation  which  had  previously  received  permission  from  the  city  council  to 
erect  its  wires.5 

834.  Telegraph  and  Telephone  Companies  Taxed. — By  its  power  of  police 
regulation  and  control  over  persons  and  property  within  its  limits  the  state  may 
impose  taxes  upon  telegraph  and  telephone  companies,  and    provide  for  the 
proper  conduct  of  their  business.      It  may  determine  the  manner  in  which 
their  lines  shall  be  constructed  and  maintained,  and  exercise  such  general  con- 
trol as  the  public  interests  may  require. 

1  Cumberland,     etc.,    Teleph.    Co.     v.  '25  Amer.  &  Eng.  E-ncy.  Law  768. 
United  Electric  Co.,  42  Fed.  Rep.  273.                4  City    of    Ogden    City    v.     Grossman 

2  See  Keasbey  on   Electric   Wires    152;       (Utah),  53  Pac.  Rep.  985  [1898]. 

Dill,   on  Munic.  Corp.  (4th  ed.),  §   734,  5  People    v.   _Squire  (N.   Y.),   14  N.   E. 

note.  Rep,  820  [i 


§834-          OPERATIONS  PRELIMINARY    TO    CONSTRUCTION.  558 

Under  statute  laws  authorizing  cities  to  collect  a  license-fee  on  various 
occupations,  etc.,  a  city  council  is  authorized  to  pass  an  ordinance  levying 
a  license-fee  of  five  dollars  on  each  telephone  instrument  operated  by  a  telephone 
company  and  used  exclusively  within  the  limits  of  the  city  for  local  business 
and  for  which  a  rental  charge  is  made.1 

of  Ogden  City  v.  Crossman  (Utah),  53  Pac.  Rep.  985  [1898]. 


CHAPTER  XL. 

RIGHTS  OF  WAY  IN  CONDUITS,   PIPE-LINES,  ETC.,  FOR  WATER, 
OIL,    AIR,    GAS,    AND   ELECTRICITY. 

841.  Rights  of  Way  for  Subways  and  Underground  Conduits, — Much 
that  has  been  said  in  previous  chapters  of  rights  of  way  and  of  the  interest  of 
the  public  and  of  abutting  owners  in  public  ways  could  be  repeated  here  under 
this  subject  of  subways.  In  fact,  if  the  reader  has  not  read  what  precedes,  or 
has  not  a  fair  knowledge  of  the  principles  of  the  law  of  property  and  of  easements, 
he  should  make  it  his  first  business  to  inform  himself  in  those  particulars.* 

Much  that  has  been  written  on  the  subject  of  rights  of  way  of  roads,  rail- 
roads, street  railways,  telegraph-  and  telephone-lines  will  shed  light  upon  the 
subject  of  rights  of  subways.  The  reader  should  also  review  the  subject  of 
boundaries  of  ways  and  property  in  ways,f  and  what  has  been  said  with  refer- 
ence to  the  substances  or  materials  which  are  conveyed  or  carried  in  subways. 

The  questions  which  arise  most  frequently  in  the  construction  and  use  of 
subways  are  those  which  arise  from  the  occupation  and  use  of  public  ways  for 
a  right  of  way  ;  and  the  determination  of  these  questions  depends  largely  upon 
three  conditions,  which  may  vary  in  different  localities.  They  are :  (i)  the 
purpose  for  which  the  subway  is  to  be  used,  and  whether  or  not  it  is  a  purpose 
incident  to  travel ;  (2)  the  ownership  of  the  public  way — whether  the  fee  is  in 
the  abutting  owner  or  in  the  state  or  municipality ;  (3)  the  powers  granted  to 
the  party  by  the  legislature  either  generally,  as  in  a  company's  charter,  or  by 
the  franchises  conferred  and  acquired.  These  questions  have  been  discussed  at 
considerable  length  in  preceding  chapters.  The  courts  of  different  states  are 
not  agreed  upon  any  of  them  except,  perhaps,  the  legislative  powers  conferred, 
which  must  be  express. 

In  some  states,  if  the  purposes  for  which  the  subway  is  to  be  used  render 
the  street  safer,  better,  and  more  healthful,  it  is  held  not  an  additional  burden 
upon  the  highway,  but  a  use  incident  to  travel.  Such  subways  are  those  for 
gas  and  electricity  (and  possibly  oil)  available  or  employed  to  light  the  streets  ; 
water-pipes  from  which  water  may  be  taken  to  sprinkle  and  clean  the  streets ; 
sewers  that  may  afford  street-drainage,  etc.  These  uses  and  purposes  are  held 
incident  to  travel  even  though  they  be  also  used  for  municipal  purposes,  as  for 

*  See  CONTENTS  preceding  chapters.  \  See  Sees.  441-460,  supra. 

55Q 


§842.          OPERATIONS  PRELIMINARY    TO    CONSTRUCTION.  560 

/ 
the  benefit  and  use  of  householders.     A  telephone  and  telegraph  subway  has 

been  held  not  incident  to  street  purposes  even  though  it  be  used  for  police 
and  fire  service  and  incidentally  for  the  maintenance  of  good  order  of  the 
streets.1 

A  right  to  lay  and  maintain  underground  lines  of  pipe  for  the  transporta- 
tion of  oil,  gas,  air,  or  water  may  exist  in  corporations  created  for  public  pur- 
poses, or  such  a  right  may  be  acquired  by  private  persons  or  corporations  by 
grant  from  landowners.  Usually  such  rights  of  way  are  acquired  and  exer- 
cised by  guasi-public  corporations  chartered  for  the  purpose.  The  right  to 
appropriate  private  property  for  the  purpose -of  a  right  of  way  is  a  right  con- 
ferred by  the  legislature,  and  the  right  to  use  public  streets  of  a  city  for  laying 
such  pipe-lines  must  be  exercised  under  authority  of  the  legislature.  To 
obtain  such  authority  from  the  legislature  the  pipe-lines  must  partake  of  the 
character  of  a  public  use,  and  the  determination  of  what  is  a  public  use  rests 
with  the  legislature,  subject  to  a  limited  review  by  the  courts.2 

The  right  of  a  gas  company  to  use  public  highways  for  the  laying  down 
and  operation  of  a  gas-pipe  requires  a  franchise  which  can  be  granted  only 
by  the  legislature  or  by  some  local  or  municipal  authority  empowered  to 
confer  it.  The  right  to  lay  gas-pipes  in  a  country  highway  is  not  such  a  use 
of  the  highway  as  was  contemplated  at  the  time  of  its  condemnation.  There 
is  a  greater  variety  in  cities  of  the  uses  to  which  such  streets  are  put  than  in 
those  to  which  country  roads  are  put;  and  in  cities  the  use  of  the  streets  for  the 
laying  down  of  gas-pipes  is  considered  a  legitimate  use,  subject,  of  course,  to 
municipal  regulation.3 

842.  Pipe-lines, — Corporations  created  for    the    transportation    of  fluids 
(petroleum,  etc.)  by  means  of  pumping  them  through  pipe-lines  have  been  held 
to  be  engaged  in  a  business  of  such  a  public  nature  as  to  have  the  right  of  emi- 
nent domain  conferred  upon  them.4    Some  of  the  uses  to  which  such  pipe-lines 
have  been  put  and  which  have  been  considered  public  uses  are  the  following : 
the   conduction   of  gas  manufactured  by  a  gas  company  ;5  the  transportation 
and  supply  of  natural  gas ;   the  transportation  of  oil  in  a  pipe-line ;   the  con- 
veyance and  supply  of  water ;   the  use  of  electric  conduits  for  the  transmission 
of  currents  of  electricity  ;  and  the  use  of  pipes  for  conveying  compressed  air.6 

The  cases  which  do  not  regard  such  uses  as  public  uses  are  where  the 
companies  have  not  been  authorized  to  take  private  property.  A  private  gas 
company  has  been  held  under  no  obligation  to  continue  to  supply  its  cus- 
tomers any  more  than  are  those  who  supply  any  other  articles. 

843.  Pipe-lines   in   Public  Ways — How  Authorized. — Without   express 

1  Whilcher  v.  Holland  W.   Co.,   142  N.  Barb.  410;  Mill's  Eminent  Domain,  §  55. 
Y.  626,  48  St.  Rep.  196.     See  29  Amer.   &  4  Lewis's     Eminent    Domain    (1888),    § 
Eng.  Ency.  Law  16,  24  idem  46,  114.  172.     And  see  Turnpike  Co.  v.  American, 

2  Jersey    City    Gas    Co.   v.   Dwight,   29  etc..  News  Co.,  43  N.  J.  Law  381. 

N.  J.   Eq.   242;  18  Amer.  &   Eng.    Ency.  5Bloomfield,    etc.,    Nat,     Gas.     Co.    v. 

Law  457,  458.  Richardson  (N.  Y.),  63  Barb.  437. 

3  See  Bloomfield  G.   Co.   v.   Calkins,  62  6i8  Amer.  &  Eng.  Ency.  Law  458. 
N.  Y.  386;  Kelsey  v.   King  (N.  Y.),  32 


56 1  RIGHTS   OF   WAY  IN   CONDUITS,  PIPE-LINES,  ETC.       §  844. 

authority  a  municipal  corporation  cannot  grant  exclusive  rights  of  its  streets 
for  purposes  of  pipe-lines,  and  it  is  not  settled  in  the  courts  as  to  how  far  a 
highway  may  be  appropriated  for  the  use  of  pipe-lines  and  other  burdens 
without  any  compensation  to  the  owner  of  the  soil  in  the  street.  There  are 
numerous  cases  which  seem  to  hold  that  at  least  a  country  highway  may  not 
be  used  for  the  laying  of  pipes  without  the  consent  of  the  owner  of  the  land.1 
Other  cases  hold  that  the  owner  of  the  fee  in  a  highway  is  not  entitled  to 
compensation  for  the  subjection  of  the  highway  to  the  additional  public  use  of 
laying  water-pipes  under  it.2 

The  laying  out  of  an  alley  by  the  owners  of  adjoining  lots  along  the  rear 
of  the  lots,  for  the  use  of  the  several  lots,  has  been  held  to  make  it  subject  to 
the  same  uses  as  a  city  alley,  and  the  owners  of  the  lots  have  the  right  to  lay 
water-,  gas-,1  and  sewer-pipes  along  it.3 

Injunction  will  issue  at  the  instance  of  a -township  to  prevent  the  laying  of 
water-pipes  in  the  township  streets  without  its  consent.4 

The  general  authority  given  by  public  statutes  to  towns  to  lay  out  ways 
will  warrant  the  construction  by  a  town  of  a  way  along  a  strip  already  con- 
demned by  a  city  for  the  laying  of  its  water-pipes,  there  being  no  act  pro- 
hibiting it,  and  the  use  of  the  land  for  laying  water-pipes  being  in  no  way 
inconsistent  with  the  use  for  a  way,  and  there  being  no  material  interference 
between  such  uses,  and  no  probability  that  there  will  be  any  such  interference.5 
An  ordinance  authorizing  the  construction  of  water-works  by  a  city  may  pro- 
vide for  the  laying  of  mains  on  streets  in  which  a  private  water  company  has 
already  laid  mains.6 

844.  Subways  Constructed  under  License.* — In  Rhode  Island  it  has 
been  decided  that  the  right  of  a  gas  company  to  lay  pipes  was  an  easement,  not 
a  license  merely.  Where  a  license  was  given  to  lay  pipes  it  was  held  good 
until  revoked  by  the  owner  of  the  land  or  his  grantees ;  and  that  the  employ- 
ment, by  such  grantees,  of  another  gas  company  to  furnish  gas  through  the 
pipes  thus  laid  was  not  a  revocation  of  such  license  even  though  such  other 
gas  company  disconnected  the  pipes  from  the  first  company's  main  and  con. 
nected  its  own  main  with  them.7  In  Georgia  a  license  to  lay  pipes  on  land  has 
been  held  irrevocable  after  they  are  laid  and  expenses  are  incurred  thereby ; 
and  a  subsequent  grantee  of  the  land  with  notice  is  bound  thereby.8 

1  Bloomfield,   etc.,   Co.   v.    Calkins,   62  5  City  of  Boston  v.  Town  of  Brookline 
N.  Y.  386.     And  see  Boston  v.   Richard-       (Mass.),  30  N.  E.  Rep.  611. 

son,  13  Allen  (Mass.)  160.  6  Hughes  v.  Momence  (111.).  45  N.   E. 

2  Bishop   v.    North    Adams    Fire  Dist.        Rep.  300. 

(Mass.),    45     N.    E.    Rep.    925.     And  see  7  Providence  G.  Co.  v.  Thurber,  2  R.  I. 

Boyer  v.    Little  Falls   (Sup.),  38    N.   Y.  15;  Poughkeepsie  G.  Co.  v.  Citizens' G. 

Supp.  1114.  Co.,  27  N.  Y.  Super.  Ct.  214. 

'Foran  v.    Mclntyre  (Pa.    Com.    PL),  8  Rome  G.    L.    Co.   v.   Meyerhardt,    61 

26  Pittsb.  Leg.  J.  (N.  S.)  468.  Ga.    287;    8  Amer.    &    Eng.    Ency.    Law 

Inhabitants  of  Township  of  Franklin  1280,    1281;    Tynon    v.    Despain    (Colo.) 

v.  Nutley  Water  Co.  (N.  J.  Ch.),  32  All.  43  Pac.  Rep.  1039. 
Rep.  381. 

*  See  Sees.  661-670,  supra. 


§845-          OPERATIONS  PRELIMINARY   TO    CONSTRUCTION.  562 

An  abutting  lot-owner  who,  under  a  license  from  a  city,  puts  pipes  under 
the  surface  of  a  street  to  conduct  water  from  a  spring  on  his  land  to  his  build- 
ings on  other  land,  and  so  maintains  the  same  for  21  years,  does  not  thereby 
acquire  an  easement  by  prescription,  since  his  occupation  of  the  street,  being 
under  license  from  the  city,  has  not  been  adverse  and,  the  pipes  being  under 
ground,  has  not  been  open  and  notorious  as  to  the  public.1  When,  however, 
the  water  company's  right  to  convey  water  in  pipes  buried  in  the  highway 
antedated  the  incorporation  of  the  village  and  it  did  not  appear  that  the  fee 
of  the  streets  was  in  the  village,  it  was  held  that  the  principle  that  no  pre- 
scriptive right  in  a  highway  could  be  obtained  as  against  the  public  could  not 
be  invoked.2 

845.  Right  to  Enter  and  Open  and  Occupy  Streets, — Municipalities  can- 
not prohibit  or  prevent  entry  upon  streets  by  water  companies  having  the  ex- 
press and  absolute  right  of  entry  by  statute,  but  may  only  regulate  the  work 
with  regard  to  grades  and  convenience  of  public  travel.     Such  right  will  not  be 
subject  to  the  permission  of  the  borough  council  unless  specifically  provided 
for  in  the  creative  act.3 

If  the  franchise  or  charter  be  granted  upon  condition  .that  the  consent  of 
the  municipal  authorities  be  obtained,  it  is  not  a  perfected  franchise  until  such 
consent  has  been  obtained,  and  the  right  to  occupy  and  open  the  streets  is 
vested  only  when  the  consents  required  are  obtained.4  The  question  fre- 
quently arises  as  to  who  are  the  municipal  authorities  whose  consent  must  be 
obtained  when  it  is  not  expressed  in  the  act. 

846.  The   Act   of  Granting  the    Consent   is   Discretionary. — The   city 
authorities  may  grant  or  refuse  their  consent,  or  may  grant  it  upon  such  terms 
and  conditions  as  they  choose  to  impose.5    The  commissioner  of  public  works 
cannot,   by  mandamus,  be  compelled  to  give  permit  to  open   street  unless 
party  has  well-defined  rights  thereto.     The  exercise  of  such  care  and  authority 
is  discretionary.6 

A  gas  company  inhibited  by  its  charter  from  digging  up  the  streets  of  the 
city  until  the  consent  of  the  city  government  is  obtained  cannot  be  enjoined 
by  a  taxpayer  of  the  city  on  the  ground  that  the  act  of  incorporation  is  void, 
that  the  right  to  grant  permission  to  lay  down  pipes  in  the  streets  is  vested  in 
the  city  and  is  of  great  value,  and  if  sold  would  realize  a  large  pecuniary 
benefit  to  the  city.  The  corporation  of  a  city  has  an  undoubted  right  to  give 
permission  to  a  company  to  lay  down  their  pipes  beneath  the  surface  of  the 
streets  as  a  means  of  supplying  citizens  with  an  increased  supply  of  gas.7 
They  are  not  obliged  to  sell  such  permission  or  treat  it  as  a  part  of  the  city 

1  Elster    v.    City    of    Springfield   (Ohio       351. 

Sup.),  30  N.  E.  Rep.  274.  5  People  v.  O'Brien,  in  N.  Y.  i. 

2  Boyer  v.  Little  Falls  (Sup.),  38  N.   Y.  6  People    ex   rel.    3d  Ave.    v.    Newton, 
Supp.  1114.  112  N.  Y.  404. 

3  Forty  Fort  v.   Forty  Fort  Water  Co.  7  Smith    v.    Metropolitan    G.     Co.,     12 
(Pa.),  9kulP24i  [1897].  How.   Pr.  (N.  Y.)  187;  Norwich  G.   Co. 

4  Matter  of  Rochester  R.  Co.,  123  N.  Y.  v.    Norwich  G.  Co.,  25  Conn.  24. 


563  RIGHTS   OF   WAY  IN   CONDUITS,  PIPE-LINES,  ETC.       §  847. 

property  which  is  to  be  used  for  purposes  of  city  revenue.  Nor  is  this  power 
to  authorize  the  laying  down  of  gas-pipes  a  part  of  city  property  to  which  the 
corporate  authority  of  the  city  is  to  resort  for  purposes  of  revenue.1 

When  necessary,  a  city  may,  in  order  to  make  improvements,  disturb  or 
remove  railway  tracks,  pipes,  and  poles  temporarily,  although  the  use  of  the 
franchises  be  seriously  interrupted  for  the  time  being.  Such  companies,  like 
all  others  using  the  highways,  may  be  required  to  submit  to  temporary  incon- 
venience and  delays  for  the  sake  of  public  advantage.  It  has  been  held  that 
the  construction  of  an  underground  street  railway  is  not  such  a  public  work 
as  will  justify  the  tearing  up  of  a  railway  already  laid.2 

The  grant  of  a  right  to  use  the  streets  of  a  city  on  condition  that  the 
consent  of  the  local  authorities  be  obtained,  which  consent  has  been  obtained, 
vests  the  company  with  the  right  to  use  the  street  as  a  franchise  conferred  by 
the  state.3 

When  a  franchise  which  is,  in  its  nature,  a  contract  and  which  does  not 
reserve  to  the  legislature  the  power  of  repeal  is  once  acquired  under  statute, 
it  cannot  be  divested  by  subsequent  legislation.4 

847.  Property  in  Pipe- lines. — A  company  which  owns  a  franchise  to  lay 
pipes  for  the  purpose  of  transporting  oil,  gas,  or  water  has  two  kinds  of 
property  therein,  viz.,  (i)  an  incorporeal  hereditament  and  easement  in  the 
land  through  which  the  pipes  are  laid,  and  (2)  the  property  in  the  pipes,  which 
is  regarded  differently  in  the  several  states.  Some  states  regard  the  property 
in  pipes  as  a  fixture  to  the  land  by  reason  of  the  easement  therein,  and  others 
as  real  estate  pertaining  to  the  main  plant,  and  in  yet  others  as  personal 
property,  and  in  Massachusetts,  by  statute,  as  machinery.  In  Rhode  Island 
the  nature  of  the  property  was  likened  to  the  right  of  a  railroad  company  to 
build  and  occupy  its  road,  or  a  canal  company  its  canal  under  the  provisions 
of  its  charter,  which  grants  the  power  to  take  the  land  upon  paying  compen- 
sation to  the  owners.5 

In  England  gas  companies  have,  in  different  parishes,  been  held  ratable 
as  occupants  of  the  land  by  their  apparatus,  pipes,  etc. ,  under  statute,  but  a 
water  company  was  held  not  liable  to  land-tax  for  the  land  occupied  by  its- 
pipes.6 

In  a  Rhode  Island  case7  the  question  was  thoroughly  discussed,  and  in 
the  New  England  states,  Pennsylvania,  and  New  York  the  pipes  seem  to  be 
held  to  be  fixtures,  especially  where  the  right  of  way  has  been  granted  by 

1  Smith  v.  Metropolitan  G.  Co.  (N.  Y.),  5  Providence    Gas.    Co.   v.    Thurber,  2 
12  How.  Pr.  187.  R.  I.  15.     See  also  Binney's  Case  (Md.), 

2  West    Phila.    Pass.   R.   Co.   v.   Phila.  2  Bland  145;  Boston  W.  P.  Co.  v.  Boston 
(Pa.),  10  Phila.  70.  (Mass.),   29  Met.   202;  Bishop   v.    North 

8  Brooklyn   v.  Jourdon,  7  Abb.  (N.  C.)  Adams  F.  D.  (Mass.),  45  N.  E.  Rep.  925. 
23;    Jersey   City   G.    Co.  v.    Dwight,    29  6i8  Amer.  &  Eng.  Ency.  Law  459. 

N.  J.  Eq.  242.  'Providence    Gas    Co.    v.    Thurber,   2 

4  Brooklyn  Cent.   R.  Co.   v.   Brooklyn  R.  I.  15. 
C.  R.  Co.,  32  Barb.  358. 


§848.          OPERATIONS  PRELIMINARY   TO    CONSTRUCTION.  564 

deed  in  fee.  The  pipes  being  annexed  to  the  freehold,  and  a  gas  company 
having  an  easement  in  fee,  the  pipes  are  held  to  be  fixtures,  and  therefore  they 
may  be  rightfully  assessed  as  real  estate.1' 

In  Iowa  the  land,  machinery,  and  water-mains  of  a  water  company  were 
held  to  be  real  estate  and  appurtenant  to  the  water-works  or  main  structure 
even  though  the  pipe-lines  were  not  laid  upon  the  lots  owned  by  the 
company,  and  even  though  they  extended  into  other  townships.  It  was 
argued  that  the  pipe-lines  acquired  their  real-estate  character  by  being 
appurtenant  to  the  water-works,  and  that  they  would  pass  as  incident  to  the 
principal  thing  in  a  conveyance  of  the  works  without  any  conveyance  of  the 
land  where  they  were  located;  and  that  no  easement  was  required  except  in 
the  place  where  the  water-works  and  lots  were  situated.3 

In  New  York  state  the  pipes  of  a  gas  company  running  under  the  streets 
of  a  city,  not  being  erected  upon  or  affixed  to  the  company's  land,  were  held 
not  real  estate  under  the  statutes  for  the  purpose  of  taxation,3  but  since  May, 
1899,  they  are,  by  special  act  of  legislature,  to  be  taxed  as  real  estate.  It 
was  also  held  in  another  case  that  incorporeal  hereditaments  were  not  subject 
to  taxation  as  land  or  real  estate.4  These  are  cases  involving  a  question  as  to 
whether  such  pipe-lines  should  be  taxed,  and  to-day  the  law  does  not  seem 
to  be  well  settled.5 

The  right  to  bring  v/ater  through  pipes  across  the  grantor's  lands  is  such 
an  interest  in  lands  as  requires  the  deed  of  grant  to  be  subscribed,  sealed,  and 
acknowledged  or  attested.6 

848.  Grants  of  Exclusive  Use  of  Streets  for  Subways.* — A  city  may  not 
grant  exclusive  use  of  the  streets  for  laying  gas-pipes  without  direct  authority 
from  the  legislature.7  The  legislature  may,  however,  in  effect  grant  the 
exclusive  privilege  to  a  gas  company  to  furnish  gas  to  a  city  for  a  term  of 
years  by  a  general  grant  of  power  to  cause  such  city  to  be  lighted  with  gas. 
While  the  grant  carries  with  it  by  implication  all  such  powers  as  are  necessary 
for  the  proper  and  convenient  exercise  of  the  authority  expressly  conferred, 
it  does  not  authorize  the  city  council  to  grant  an  exclusive  right  to  use  the 
streets  of  the  city  for  the  purpose  of  laying  down  gas-pipes  for  a  term  of  years 
or  thereafter  until  the  works  shall  be  purchased  from  the  grantee  by  the  city. 
A  power  to  a  city  to  light  the  city  would  authorize  a  contract  for  gas,  and 
would  give  the  city  power  to  grant  the  contracting  party  the  use  of  the  streets, 
but  not  authority  to  give  exclusive  use  for  a  definite  period.8 

1  18  Amer.  &  Eng.  Ency.  Law  460.    See  5  18  Amer.  &  Eng.  Ency.  Law  461  and 
Franchise  Tax  Law, — Laws  of  New  York,       references. 

Extraordinary  Legislature,  May,  1899.  6  Nellis  v.   Munson  (N.   Y.),    15   N.    E. 

2  App.   of  Des  Moines  W.   Co.,  48  la.        Rep.  739  [1888]. 

324.     And  see    Capitol    City    G.     Co.    v.  7  8  Amer.  &  Eng.  Ency.  Law  1277  and 

Charter  Oak  Ins.  Co.,  51  la.  31.  cases  cited. 

8  People  v.  Bd.  of  Assess.,  39  N.  Y.  81.  88   Amer.    &    Eng.    Ency.    Law    1278- 

*Borrell    v.    Mayor   (N.   Y.),    2   Sandf.        1280. 
552. 

*  See  Sees.  792,  795,  8i'9,  supra. 


565  RIGHTS   OF   WAY  IN  CONDUITS,  PIPE-LINES,  ETC.      §  849. 

Neither  is  such  contract  objectionable  or  invalid  by  reason  of  the  stipula- 
tion that  the  city  would  not  during  its  term  erect  water-works  of  its  own; 
there  being  no  attempt  thereby  to  create  a  monopoly,  and  the  city  reserving 
the  right  therein  to  take,  condemn,  and  pay  for  the  works  of  the  company  at 
any  time.  Taking  into  consideration  the  nature  of  the  contract,  the  large 
expenditure  which  it  involved  on  the  part  of  the  company,  and  the  ruinous 
effect  on  its  property  which  the  direct  competition  of  the  city  would  neces- 
sarily have,  such  provision  is  a  lawful  incident  to  the  principal  contract,  and 
amounts  to  little  more  than  an  agreement  that  the  city  would  carry  out  the 
contract  on  its  part  in  good  faith,  and,  if  it  should  desire  to  establish  water- 
works of  its  own,  would  not  enter  into  such  competition.1 

Under  an  act  of  the  legislature 2  empowering  a  city  to  grant  the  right  to 
erect  and  operate  water- works  for  the  use  of  the  city,  provided  that  at"  the 
expiration  of  the  twenty  years  the  city  should  purchase  the  works,  if  the  grant 
should  not  be  renewed,  and,  if  the  price  could  not  be  fixed  by  agreement, 
pay  therefor  the  fair  and  equitable  value,  an  ordinance  was  passed  by  the 
city  and  a  contract  was  made  under  which  the  works  were  erected  by  a  water 
company,  which  provided  that  on  a  failure  to  renew  the  grant,  at  the  expira- 
tion of  twenty  years,  the  city  should  purchase  the  works.  It  was  held  that 
the  provision  for  purchase  was  mandatory  if  the  grant  was  not  renewed.3 

A  right  to  carry  and  conduct  under  lands,  and  therein  to  construct, 
operate,  and  forever  maintain,  an  underground  main  sewer  and  connecting 
sewers,  drains,  manholes,  and  underground  appurtenances,  and  to  repair  and 
renew  the  same,  does  not  include  the  right  to  remove  the  soil  from  one  part 
of  the  system  to  another  in  repairing  and  renewing  such  sewer.4 

849.  Care  of  Subways.  —  Negligence.  —  Plaintiff  owned  greenhouses 
situated  on  the  westerly  side  of  a  street.  Defendant  gas  company's  main  pipe 
lay  along  the  easterly  side,  and  a  service  pipe,  crossing  the  street  under  the 
rails  of  an  electric  street  railway,  connected  it  with  a  street-lamp  in  front  of 
the  greenhouses.  The  service-pipe  was  corroded  by  natural  causes,  or  eaten 
away  by  electrolytical  action,  and  allowed  gas  to  escape;  but,  the  ground 
being  frozen,  the  gas  percolated  through  the  soil  under  the  frozen  crust  till  it 
reached  the  greenhouses,  and  then  came  to  the  surface  and  destroyed  'the 
growing  plants  within.  There  was  a  conflict  of  evidence  on  the  question 
whether  the  time  since  the  pipe  was  laid  was  in  itself  long  enough,  under  the 
circumstances,  to  call  for  an  inspection  of  its  condition.  It  also  appeared, 
without  contradiction,  that  prior  to  the  freezing  of  the  ground  there  had  been 
a  strong  smell  of  gas  in  the  street  at  that  point.  It  was  held  that  the  evi- 
dence warranted  a  finding  of  negligence  on  the  part  of  defendant  in  failing  to 
examine  the  pipe.5 

»City  of  Walla  Walla  v.  Walla  Walla  (C.  C.  A.),  62  Fed.  Rep.  853. 

Water  Co.,  19  Sup.  Ct.  Rep.  77  [1898].  4  Butchers'     Ass'n    v.    Commonwealth 

2  Laws  of  Missouri.  March  24,  1873.  (Mass.),  47  N.  E.  Rep.  599  [1897]. 

3  National  W.-w.    Co.   v.   Kansas  City  5Siebrecht  v.   East  River  Gas  Co.,  47 


§850.          OPERATIONS  PRELIMINARY    TO    CONSTRUCTION.  566 

850.  Measure  of  Damages. — On  an  appeal  from  an  award  of  damages  for 
the  appropriation  of  an  easement  in  land  for  the  laying  of  natural-gas  mains, 
the  jury  should  consider  the  relation  of  the  remainder  of  the  farm  affected  to 
the  part  condemned,  the  fact  that  the  owners  were  deprived  of  the  privilege 
of  improving  certain  portions  of  their  land,  and  the  liability  of  the  soil  and 
crops  to  injury  by  leakage.1 

In  an  action  for  damages  to  land  used  for  farming  purposes,  resulting  from 
the  construction  over  it  of  a  pipe-line,  it  is  competent,  in  estimating  the 
injury  to  the  property  as  a  whole,  to  show  that  part  of  the  land  is  ripe  for 
building  improvements.2 

851.  Other  Rights  of  Way. — There  are  perhaps  other  rights  of  way  or  uses 
that  may  be  met  in  construction  work  which  have  not  been  specially  con- 
sidered in  this  book,  but  the  author  feels  that  the  discussion  of  those  that  are 
treated  will  enable  the  reader  to  determine  safely  the  rights  and  liabilities 
existing  under  such  rights  so  far  as  may  reasonably  be  expected  of  him.      In 
case  large  interests  are  involved  the  engineer  or  architect  or  contractor  or 
builder  or  public  officer  would  of  course  consult  competent  counsel  at  law. 
It  is  out  of  the  question  in  this  short  work  to  undertake  to  go  very  far  into 
the  law  upon  the  topics  herein  treated,   which  is  almost  boundless  in  its 
extent  and  embraces  so  many  different  subjects. 

N.  Y.  Supp.  262,  21  App.  Div.  10.     And  'Railroad  Co.   v.  Cleary,  17  Atl.   Rep. 

see  Sherman  v.  Fall  River  (Mass.),  2  Allen  468,  125  Pa.  St.  442,  distinguished;    Wil- 

524;  Jutte  v.  Hughes,  67  N.  Y.  267.  son  v.   Equitable  Gas  Co.  (Pa.  Sup.)  25 

1  Manufacturers'    Natural    Gas  Co.  v.  Atl.  Rep.  635. 
Leslie,  49  N.  E.  Rep.  946. 


PART  V. 

FRANCHISES. 


CHAPTER  XLI. 
CHARACTER   AND   KINDS   OF   FRANCHISES. 

861.  Character  of  a  Franchise. — A  franchise  is  a  special  privilege  granted 
by  the  government  to  individuals  and  one  which  does  not  apply  to  the  citizens 
of  a  country  in  general  and  by  common  right.     A  franchise  must  have  been 
granted  by  the  sovereign  authority,  and  no  franchise  can  be  held  which  is  not 
derived  from  a  law  of  the  state.     At  common  law  a  franchise  was  made  a 
branch  of  the  king's  prerogative  subsisting  in  the  hands  of  a  subject;  but  this 
idea  of  a  franchise  has  been  modified  to  agree  with  the  modern  prerogatives 
of  constitutional  government. 

It  is  a  duty  of  a  government  to  provide  and  maintain  highways,  bridges, 
and  ferries,  to  supply  water  and  gas,  and  to  make  in  various  other  ways  pro- 
vision for  the  comfort  and  convenience  of  the  public.  These  duties  are  not 
always  assumed  by  the  government,  but  are  sometimes  delegated  to  its  citizens. 
As  an  inducement  for  the  latter  to  undertake  such  duties,  more  or  less  exclu- 
sive privileges  are  granted.  These  privileges  are  the  most  common  form  of 
modern  franchises,  and  they  are  usually  granted  to  corporations  for  good  busi- 
ness reasons.  The  power  and  duty  of  a  government  in  granting  a  franchise 
does  not  end  with  the  mere  matter  of  business  policy;  and  while  the  corpora- 
tions created  for  public  purposes  may  constitute  a  minority  in  the  many 
corporate  enterprises  of  to-day,  yet  the  objects  for  which  corporations  are 
created  are  universally  such  as  the  government  wishes  to  permit.  They  are 
deemed  beneficial  to  the  country,  and  this  benefit  constitutes  in  most  cases  the 
sole  consideration  of  the  grant. 

862.  Public  Character  of  Corporations. — The  tendency  of  to-day  is  to 
lose  sight  of  the  public  character  of  a  corporation,  and  the  result  is  to  obscure 
and  render  difficult  of  application  the   principles  of   corporation    law.     A 

567 


§  862.          OPERATIONS  PRELIMINARY    TO   CONSTRUCTION.  $68 

powerful  railroad  corporation  endowed  with  valuable  franchises  and  subject  to 
important  public  duties  is  not  likely  to  be  regarded  in  the  same  light  as  an 
ordinary  manufacturing  company.  Early  legislation  regulated  the  formation 
and  control  of  corporations  in  a  liberal  manner.  The  aggregations  of  capital 
materially  aided  in  developing  the  resources  of  a  new  and  growing  country. 
Special  charters  were  granted  which  conferred  valuable  franchises  in  generous 
terms,  and  the  immediate  and  future  interests  of  the  state  were  not  foreseen 
and  guarded  as  might  have  been  expected  under  other  circumstances.  Tne 
law  of  earlier  decisions  reflects  this  influence.  The  law  of  the  present  day 
shows  a  new  and  conservative  policy,  which  in  some  states  reaches  the 
opposite  extreme.  Constitutional  provisions  in  many  states  now  prohibit  the 
incorporation  of  companies  by  special  acts,  but  the  general  laws  regulating 
the  formation  of  corporations  admit  of  their  creation  for  almost  any  lawful 
purpose.  Almost  all  of  the  early  liberality  of  legislatures  has  disappeared 
from  the  later  statutes  affecting  corporations.  This  change  has  brought  about 
more  or  less  conflict  in  the  law  of  corporations,  and  much  of  this  conflict  may 
be  explained  by  this  change  of  relation  of  corporations  to  the  state  creating 
them.  Certain  corporations  having  been  invested  with  such  powers  and  fran- 
chises as  the  right  of  eminent  domain,  and  having  received  state  or  municipal 
aid  or  having  been  created  for  public  purposes,  they  have  become  agents  or 
trustees  of  the  state  as  to  the  property  secured  by  the  exercise  of  their 
powers  conferred. 

There  is  a  distinction  between  a  franchise  of  a  corporation  and  the  powers 
of  such  corporation.  To  be  a  franchise  the  right  possessed  must  be  such 
as  cannot  be  exercised  without  the  express  permission  of  the  sovereign  power; 
that  is  to  say,  a  privilege  or  immunity  of  a  public  nature  which  cannot  be 
legally  exercised  without  legislative  grant.  The  right  to  carry  on  any  par- 
ticular business,  whether  belonging  to  a  natural  or  an  artificial  person,  is  not 
necessarily  or  even  usually  a  franchise.  The  right  to  carry  on  a  particular 
business  by  a  corporation  organized  under  a  special  charter  or  general  law  is 
not  afrancfa'sebut  it  is  a  power,  provided  that  such  business  may  be  conducted 
by  any  citizen,  who  chooses  to  engage  in  it. 

The  right  to  build,  own,  manage,  and  run  a  railroad,  and  take  tolls 
thereon,  is  not,  of  necessity,  of  corporate  character  or  dependent  upon  cor- 
porate rights.  It  may  belong  to,  and  be  enjoyed  by,  natural  persons.  A 
distinction  is  made  between  the  franchise  and  other  property  acquired  by  it. 
A  franchise  is  incorporeal. 

The  fact  that  a  corporation  is  charged  with  certain  public  duties  which 
are  not  imposed  upon  all  does  not  change  its  character  as  a  private  corpora- 
tion. Private  and  public  or  guasi-pubYic  corporations  are  distinguished  in 
several  ways.  The  former  should  be  distinguished  from  corporations  having 
certain  franchises  or  engaged  in  business  in  which  the  public  have  an  interest. 
The  public  relations  of  private  corporations  arise  from  the  acceptance  of  the 


569  CHARACTER  AND   KINDS   OF  FRANCHISES.  §  863. 

franchises,  the  grant  of  which  constitutes  a  contract  binding  them  to  the  per- 
formance of  various  public  duties  for  which  the  franchise  itself  is  the  consid- 
eration. Another  class  includes  those  which  have  engaged  in  business  of  such 
a  nature  as  to  require  regulation  by  law. 

Corporations  which  are  required  to  perform  various  public  duties  are  rail- 
road, telegraph,  telephone,  turnpike,  canal,  railway,  water,  gas,  and  electric 
companies,  which  have  received  their  franchises  with  the  right  of  eminent 
domain,  municipal  aid,  exemption  of  taxation,  the  monopoly  of  carrying 
on  their  business  to  the  exclusion  of  others,  or  other  grants  which  amount 
to  the  legal  permission  to  assume  certain  public  relations  from  which  the 
public  in  general  is  debarred.  In  such  companies  the  public  has  more  or 
less  interest,  which  justifies  laws  regulating  rates  of  freight  and  fares,  charges 
for  service,  prices  of  water,  gas,  etc.,  the  fixing  of  tolls,  and  otherwise  provid- 
ing for  the  comfort  and  safety  of  passengers  and  patrons. 1 

Corporations  are  frequently  subject  to  certain  other  regulations  for  public 
safety,  morals,  and  convenience,  by  the  police  power  of  the  state.  Instances 
where  corporations  have  been  incorporated  and  subsequently  subjected  to 
police  regulation  are  those  regulating  the  manufacture  and  sale  of  intoxicating 
liquors,  the  maintenance  of  lotteries,  fertilizer  maufacturing  companies,  etc. 

863.  Franchise  of  a  Corporation. — Subject  to  the  restrictions  of  its  con- 
stitution, the  state  legislature  alone  has  power  to  create  corporations  and  to 
endow  them  with  franchises.  A  state  may  confer  upon  a  corporation  any 
privileges  it  pleases  excepting  those  which  the  constitution  prohibits.  The 
charter  of  a  corporation  is  itself  a  franchise,  though  it  include  very  valuable 
privileges.  If  granted  unconditionally,  it  constitutes  a  contract  and  prevents 
further  legislative  interference  with  the  privileges  conferred,  and  possesses  a 
value  which  is  seldom  attached  to  a  franchise  of  to-day.  In  most  of  the 
states  the  constitution  prohibits  the  legislature  from  creating  corporations  by 
special  charter  and  state  constitutions,  or  general  laws  reserve  to  the  state  the 
right  to  amend  or  repeal  all  charters  of  private  corporations. 

Corporations  may  be  formed  by  general  incorporation  laws  to  engage  in 
almost  every  variety  of  business  enterprises,  and  the  process  required  by  these 
statutes  is  so  simple  as  to  enable  a  corporation  to  be  created  with  little  trouble 
and  expense.  The  corporation  of  to-day  has  therefore  lost  its  chief  element 
of  value  in  the  fact  that  a  corporate  charter  is  not  an  exclusive  privilege,  but 
may  be  acquired  by  anybody  with  little  difficulty.  The  right  to  be  a  corpora- 
tion is  a  franchise  because  it  is  a  grant  from  the  government  and  a  special 
privilege  to  do  that  which  would  be  unlawful  otherwise. 

All  powers  and  privileges  which  a  corporation  possesses  are  derived  from 

this  franchise  or  charter,  and  whether  they  be  named  in  the  charter,  or  held 

by  judicial  construction  of  its  terms,  or  read  into  its  charter,  or  implied  by 

law  from  the  grant  of  the  charter  franchise,  the  charter  is  nevertheless  the 

18  Amer.  &  Eng.  Ency.  Law  591. 


§864.          OPERATIONS  PRELIMINARY    TO   CONSTRUCTION.  57O 

measure  of  the  power  of  authority  of  the  corporation.  If  the  charter  creating 
a  corporation  be  right  itself,  and  all  the  powers  of  the  company  be  derived 
from  it,  then  it  follows  that  all  the  lawful  acts  of  the  corporation  must  be 
within  the  meaning  of  its  terms.  This  principle  is  well  established  by  the 
cases;  and  however  vague  an  idea  may  be  conveyed,  the  ordinary  use  of  the 
word  "franchise,"  as  applied  to  a  corporation,  is  in  reference  to  the  right 
given  by  law  to  be  a  corporation,  and,  also,  to  the  numerous  and  often  ill- 
defined  powers  derived  from  the  same  source.  The  first-named  franchise, 
i.e.,  the  right  to  exist  as  a  corporation,  has  usually  little  or  no  value  and  there- 
fore many  of  the  powers  which  depend  upon  it  are  no  longer  franchises  of 
consequence.  The  powers  which  are  granted  to  corporations  and  which  con- 
stitute the  chief  value  of  the  charter  have  been  affected  but  little  by  changes 
in  the  law.  These  are  certain  extraordinary  privileges  sometimes  granted  to 
corporations,  which  stand  in  a  peculiar  relation  of  duty  to  the  public,  and 
which  are  of  much  prominence  and  importance  as  franchises.  Some  of  these 
powers  are  the  following,  viz.,  eminent  domain,  exemption  from  taxation, 
municipal  aid,  and  a  right  to  a  monopoly. 

864,  Power  of  Eminent  Domain. — The  right  of  eminent  domain  would 
be  a  franchise  of  no  value  to  a  corporation  unless  it  was  formed  for  public 
purposes,  because  it  is  a  power  of  the  government  which  could  not  be  dele- 
gated  except   for  public   purposes.      In   every  franchise  there  is  an  implied 
reservation  to  the  state  of  the  right  of  eminent  domain.     It  is  regarded  as  so 
important  and  essential  an  element  of  sovereignty  that  no  legislation  can  bind 
the  state  to  an   agreement  that  it  shall  not  be  exercised.      Franchises  of  cor- 
porations, like  other  contracts  or  property,  are  subject  to  appropriation  by 
the  state  by  right  of  eminent  domain,  and  with  no  further  restrictions  than 
apply  in  all  cases,  i.e.,  that  the  condemnation  shall  be  for  public  use,  and 
that  it  is  only  authorized  upon  making  just  compensation  to  the  owner. 

865.  Right  of  Exemption  from  Taxation. — Other  franchises  which  are 
limited  strictly  to  public  purposes  are  those  which  exempt  property  from  taxa- 
tion.    This  exemption   from  taxation  can  never  be  implied,    but  must  be 
granted  by  clear,   unequivocal,  and  valid   contract.      If  the  franchise  of  ex- 
emption from  taxation  be  lawfully  granted,  it  becomes  a  contract  the  obliga- 
tion of  which  cannot  be  impaired  by  future  legislation.1 

It  has  been  declared  that  the  exemption  of  a  corporation  from  taxation  is 
not  a  corporate  franchise,  but  such  a  statement  involves  a  serious  contradic- 
tion of  all  the  best  authorities  in  the  definition  of  a  franchise.  If  such  an 
exemption  do  not  constitute  a  franchise,  it  is  not  easy  to  see  what  would  come 
within  the  terms  of  the  accepted  definition.  A  writer  upon  the  subject  in  the 
American  and  English  Encyclopaedia  of  Law  expresses  the  belief  that  those 
decisions  which  declare  that  it  is  not  a  franchise  are  upon  the  doctrine  that 
in  the  creation  of  such  franchises  the  strict  rule  of  construction  applies  to  all 
1  8  Amer.  &  Eng.  Ency.  Law  596. 


571  CHARACTER  AND    K2NLS   OF  FRANCHISES.  §  868. 

grants  in  derogation  of  common  rights,  according  to  which  only  those  rights 
may  be  included  as  are  essential  to  the  existence  and  purpose  of  the  cor- 
poration. 

866.  Right  to  Municipal  Aid. — Another  grant  of  a  franchise  to  corpora- 
tions is  that  of  municipal  aid.     This  is  sometimes  in  the  form  of  a  donation 
of  property,  but  is  usually  granted  by  authorizing  subscriptions  to  the  stock 
and  bonds  of  the  railroad  by  the  state  or  the  counties,  cities,  or  towns  through 
which  the  grantee  of  the  franchise  is  to  operate  its  lines  or  works,  and  which 
are  to  be  directly  benefited  by  such  works. 

The  only  ground  upon  which  such  franchises  are  held  to  be  ^constitutional 
is  that  the  taxation  by  which  the  money  is  raised  is  for  a  public  purpose 
because  it  is  used  to  accomplish  public  ends.  The  constitutions  of  a  number 
of  states,  as  amended,  now  expressly  prohibit  the  grant  of  such  franchises. 

867.  Right  to  a  Monopoly. — The  most  valuable  and  most  common  of 
modern  franchises  are  those  which  give  exclusive  privileges  or  monopolies. 
Such  franchises  are  common  even  though  the  constitutions  of  many  of  the 
states  prohibit  the  grant  of  such  franchises  except  for  purposes  which  are 
strictly  public.     There  are  many  things  of  such  importance  to  the  develop- 
ment, comfort,  and  general  welfare  of  communities  that  a  grant  to  corpora- 
tions formed  for   public   purposes  is  not   objectionable  even  though  such 
privileges  are  exclusive.     Such  are  electric,    gas,    and   water  companies  to 
which  is  given  the  exclusive  right  to  supply  cities  and  towns;  and  such  also 
are  other  corporations  endowed  with  like  franchises  or  with  such  others  as 
more  or  less  exclude  competition  by  the  very  nature  of  the  franchise  bestowed. 

A  large  number  of  corporations  are  brought  into  no  such  relations  to  the 
public  as  require  the  discharge  of  public  duties,  because  the  obligations  of  the 
company  usually  come  from  an  acceptance  of  the  franchise  granting  corporate 
rights  or  from  those  obligations  to  exercise  the  ordinary  powers  or  franchises 
which  accompany  it.  Unless  the  business  in  which  the  corporation  is  engaged 
be  such  that  the  public  interests  require  its  regulation,  such  a  company  is  free 
to  conduct  its  affairs  in  practically  the  same  manner  as  individuals  or  partner- 
ships. The  same  principles  do  not  apply  to  those  corporations  which  have 
accepted  the  unusual  and  valuable  franchises  already  referred  to  in  detail,  and 
which  may,  like  individuals  under  the  same  circumstances,  select  a  business 
which,  from  its  nature,  subjects  them  to  a  further  responsibility  to  the  public. 

868.  Contract  Obligations  of  a  Franchise. — It  is  well  established  that  the 
grant  of  a  franchise,  in  the  charter  of  a  corporation,  constitutes  a  contract 
the  obligation  of  which  cannot  be  impaired  by  subsequent  legislation.     The 
law  has  been  the  subject  of  much  criticism,  but  the  force  of  the  objection  to 
it  is  grounded  chiefly  upon  theory.     The  rule  has  withstood  all  attacks,  but 
the  force  of  the  law  has  been  changed  by  explanation  and  by  legislation. 
There  are  two  other  equally  well-settled  principles  of  the  law  which  have  had 
the  effect  to  almost  nullify  the  rule  stated.     The  first  of  these  principles  is 


§869.          OPERATIONS  PRELIMINARY    TO    CONSTRUCTION. 

that  every  grant  of  a  franchise  that  is  in  derogation  of  common  right  will 
receive  a  strict  construction ;  and  the  second,  that  every  charter  and  the  grants 
it  contains  is  accepted  subject  to  the  police  power  of  the  state,  which  may  rrot 
be  granted  away.  In  addition  to  these  two  rules  or  principles  of  construction 
the  state  constitutions  and  general  laws,  or  even  the  charters  themselves, 
usually  reserve  the  power  to  amend  or  repeal  the  charters  of  all  private 
corporations. 

However,  the  rule  of  law  is  as  stated,  that  a  franchise  constitutes  a 
contract  which  may  not  be  impaired  by  subsequent  legislation,  and  it  has 
protected  many  franchises  of  corporations,  of  which  the  following  are  some 
examples,  viz.  :  lawfully  granted  monopolies;  donation  of  an  annual  sum  to 
a  college;  exemption  from  taxation-;  right  to  charge  more  than  the  usual  rate 
of  interest ;  the  right  of  eminent  domain ;  the  right  to  fix  a  tariff  of  charges 
on  a  public  road;  the  right  to  form  a  new  corporation  by  consolidation  with 
another  company;  and  the  exemption  of  a  company's  servants  from  the  duty 
of  serving  upon  juries  or  of  working  upon  roads.1 

Most  charters  contain  various  provisions  which  are  matters  of  general  law 
and  not  of  contract,  and  are  therefore  subject  to  modification  and  repeal. 
The  legislature  may  validate  a  contract  not  within  the  company's  franchise. 
There  are  numerous  ways  in  which  questions  arise  as  to  how  far  individual 
rights  of  stockholders  can  be  affected  by  the  legislature  without  impairing  the 
obligations  of  contracts. 

869.  Franchises  ai*e  Granted  Subject  to  Police  Power. — The  doctrine 
that  a  grant  or  franchise  is  a  contract  has  been  frequently  raised  in  efforts  to 
protect  corporations  from  the  operations  of  law  passed  in  pursuance  of  the 
police  power  of  the  states.  It  is  well  settled  that  the  legislature  cannot  bar- 
gain away  the  police  power  of  the  state;  and  while  irrevocable  grants  of  prop- 
erty and  franchises  may  be  met  with,  they  do  not  impair  the  supreme  author- 
ity to  make  laws  for  the  right  government  of  the  state.  No  legislature  can 
curtail  the  power  of  its  successors  to  make  such  laws  as  they  may  deem  proper 
in  police  matters.  Therefore  corporations  are  subject  generally  to  remedial 
legislation,  like  individuals.  The  state  may  impose  penalties  upon  corpora- 
tions for  not  performing  their  public  duties.  A  railroad  company  may  be 
controlled  in  the  matter  of  freight  rates  and  fares;  or  as  to  the  operation  of 
its  trains;  as  to  its  liability  to  laborers  and  contractors  constructing  the  road; 
as  to  negligence  causing  death;  as  to  fences,  cattle-guards,  and  other  improve- 
ments; as  to  stopping  before  crossing  a  drawbridge;  as  to  viaducts  at  cross- 
ings; or  as  to  sign-boards,  flagmen,  speed,  whistling,  and  bell-ringing,  and 
numerous  other  matters  of  a  similar  character. 

When  the  public  safety  or  public  morals  require  it,  the  legislature  may 
abolish  or  discontinue  a  business,  and  corporations  formed  for  the  purpose 

1  8  Amer.  &  Eng.   Ency.   Law  620. 


573  CHARACTER  AND    KINDS   OF  FRANCHISES.  §  870. 

of  carrying  on  such  business  may  be  required  to  discontinue  the  objectionable 
operations. 

A  city  cannot,  by  a  contract  which  permits  a  telephone  company  to  con- 
struct and  maintain  its  line  upon  a  certain  street,  deprive  itself  of  the  power 
to  enact  such  legislation  as  is  necessary  for  the  general  welfare;  and  an 
ordinance  modifying  such  permission,  or  requiring  the  removal  of  the  line  to 
another  location,  cannot  be  held  unconstitutional,  as  an  impairment  of  the 
obligation  of  the  contract,  where  it  is  designed  for  the  public  safety  and 
convenience.1  The  same  applies  to  a  business  the  continuation  of  which  may 
become  a  nuisance.  So,  too,  the  monopoly  secured  to  the  inventor  in  the 
patent  of  an  article  does  not  prevent  the  operation  of  such  police  laws.2 

It  has  been  held  that  the  obligation  of  corporate  contracts  in  grants  or 
franchises  was  not  impaired  by  legislation  which  regulated  the  working-hours 
of  minors  and  women,  or  punished  neglect  or  misconduct  in  the  management 
of  a  ferry,  or  regulated  the  price  to  be  charged  for  water  and  gas,  or  inter- 
rupted the  business  of  a  corporation  which  had  become  injurious  to  public 
interests. 3 

870.  Franchises  which  are  Subject  to  Legislation  Affecting  Remedies. — 
Another  class  of  legislation  which  has  been  attacked  as  unconstitutional  is 
that  which  alters  the  legal  remedies  by  or  against  corporations;  the  constitu- 
tionality being  attacked  upon  the  ground  that  the  grant  of  franchise  consti- 
tutes a  contract.  It  is  well  settled  that  the  remedies  for  the  security  of  this 
right  and  those  by  which  liabilities  are  enforced  as  to  the  mode,  the  time 
when,  and  the  courts  in  which  they  should  be  enforced  are  not  placed 
beyond  legislative  control,  but  that  they  are  inalienable.  This  principle  has 
been  held  where  a  three  years'  limitation  in  a  railroad  charter  as  the  time 
within  which  suit  for  damages  for  land  taken  might  be  brought  was  extended ; 
also  where  a  summary  remedy  against  defaulting  stockholders  was  given  by 
charter  and  was  subsequently  altered,  and  where  a  charter  provision  against 
summary  process  by  execution  in  the  nature  of  an  attachment  against  debtors 
upon  notes  is  no  part  of  the  corporate  franchise  and  may  be  repealed  or 
altered.4 

It  has  been  held  that  a  different  rule  for  service  of  process  against  a  cor- 
poration from  that  in  force  at  its  creation  may  be  prescribed.  A  special 
remedy  given  to  a  railroad  company  for  condemnation  of  land  may  be 
repealed  in  a  general  statute  applying  to  all  railroads.  There  is  no  element 
of  contract  in  the  special  remedy.5 

The  word  "  person  "  has  been  held  to  include  artificial  as  well  as  natural 
persons  unless  the  language  indicates  that  it  is  used  in  a  more  restricted 
sense.  Statutes  referring  to  persons  may  also  apply,  it  seems,  to  corporations, 

1  Michigan  Tel.  Co.  v.  Charlotte  (U.  S.  3  8  Amer.  &  Eng.  Ency.  Law  623,  624. 

C.  C.),  93  Fed.  Rep.  n  [1899].  *8  Amer.  &  Eng.  Ency.  Law  624,  625. 

-State  v.  Telephone  Co.,  36  Ohio  St.  58  Amer.  &  Eng.  Ency.  Law  625. 
296. 


§8/1.         OPERATIONS  PRELIMINARY   TO    CONSTRUCTION.  S74 

and  the  question  is  one  of  proper  construction  of  statutes.  Corporations  have 
been  held  to  be  included  within  the  terms  and  statutes  which  apply  to  the 
following  subjects:  promissory  notes;  tax  laws;  statutes  protecting  lands  of 
persons  from  trespass  or  giving  remedy  lor  damages  caused  by  the  exercise 
and  power  of  eminent  domain;  laws  prohibiting  persons  from  doing  banking 
business,  or  imposing  liability  in  damages  for  injuries  causing  death,  or  pro- 
hibiting contracts  between  municipalities  and  persons  as  to  supplying  gas. 
On  the  other  hand,  corporations  have  been  held  not  to  be  included  within 
the  terms  of  United  States  confiscation  acts  or  of  statutes  applying  to  the 
formation  of  corporations.  Under  the  statute  of  Anne  a  state  is  a  corpora- 
tion which  may  be  the  payee  of  a  promissory  note.  Corporations  have  been 
held  not  to  be  within  certain  tax  laws  or  statutes  to  prevent  nuisances,  or 
prescribing  penalties  for  fraudulent  claims  against  the  government,  or  pre- 
scribing penalties  for  employing  minors  more  than  a  certain  number  of  work- 
ing-hours, or  as  being  liable  for  larceny  for  taking  the  logs  of  another. 1 

871.  The  Right  to  Amend  or  Repeal  Charters  Reserved, — One  of  the 
most  important  subjects  to  consider  in  the  study  of  franchises  is  the  right  of 
the  state  to  amend  or  repeal  them.  It  has  been  held  that  unless  such  a  right 
has  been  reserved  in  the  grant  of  the  charter,  or  unless  the  right  to  grant 
franchises  unconditionally  has  been  denied  by  the  constitution  of  the  state, 
when  a  franchise  has  been  granted  it  may  not  be  amended  or  the  rights  there- 
under taken  away  without  impairing  the  obligations  of  the  contract,  which  is 
contrary  to  the  constitution  of  the  United  States  and  of  many  of  the  states. 
At  the  time  that  the  earliest  franchises  were  granted  in  this  country  the  com- 
plications which  have  arisen  from  the  grant  of  franchises  and  the  exclusive 
and  vested  rights  under  them  were  not  anticipated.  It  was  not  until  the 
famous  Dartmouth  College  case  was  decided  that  the  attention  of  the  courts 
and  legislatures  was  brought  to  the  monopolies  which  might  be  created  by  the 
grant  of  franchises  if  the  right  was  not  reserved  to  amend  or  repeal* them. 
Judge  Story,  in  his  opinion  in  that  case,  suggested  the  desirability  of  reserving 
such  a  right  to  amend  and  repeal  charters.  This  right  is  now  reserved  in 
almost  all  charters  and  franchises,  and  in  many  states  the  power  of  legislatures 
to  grant  franchises  which  cannot  be  amended  or  repealed  has  been  taken  away 
by  constitutional  amendment.  The  evident  purpose  of  such  reservations  is 
to  prevent  corporations  from  acquiring  contract  rights  which  may  not  be 
amended  or  modified  when  the  interests  of  the  public  seem  to  require  it. 
The  doctrine  which  aims  to  prevent  the  acquisition  of  such  rights  has  been 
criticised  and  its  scope  and  bearing  have  not  been  fully  appreciated.  The 
reasoning  upon  the  reserved  power  is  likewise  often  obscure.  The  decision 
of  many  questions  which  arise  in  the  construction  and  determination  of  the 
powers  and  rights  of  corporations  which  are  quasi-public,  such  as  railroads, 
water  companies,  etc. ,  must  depend  upon  the  interpretation  of  rights  of  the 

*8  Amer.  &  Eng.  Ency.  Law  626,627. 


575  CHARACTER   AND    KINDS   OF  FRANCHISES.  §  8? 1. 

companies  under  their  franchises  or  charters.  It  therefore  becomes  an 
important  question  to  the  company  which  has  invested  large  sums  of  money 
under  a  charter  or  franchise  whether  or  not  the  money  invested  under  such 
a  charter  or  franchise  is  safely  invested,  and  whether  the  rights  acquired, 
which  rights  may  have  been  the  chief  inducement  for  the  investment  of  such 
large  sums  of  money,  are  safe,  or  whether  the  legislature  can  at  its  own  will 
make  such  changes  in  the  charter  or  franchise  as  will  render  the  property 
valueless  or  as  will  largely  depreciate  the  stocks  and  bonds  of  the  com- 
pany. 

It  will  not  require  special  effort  on  the  part  of  engineers,  contractors,  or 
business  men  who  are  engaged  in  promoting  enterprises  to  recall  instances 
in  their  own  experience  in  which  large  sums  of  money  have  been  invested 
under  the  charter  or  franchise  of  a  company,  which  investment  would  be 
rendered  well-nigh  valueless  if  the  legislature  were  permitted  to  amend  or 
alter  the  charter  of  the  company  so  as  to  destroy  important  features  of  the 
franchise. 

In  some  jurisdictions  it  has  been  held  that  when  the  power  to  amend  or 
repeal  a  charter  or  a  franchise  has  been  reserved,  the  effect  of  it  is  to  reserve 
to  the  legislature  exactly  the  same  power  of  control  over  other  charters  that 
it  would  have  had  if  the  constitutional  provisions  protecting  the  obligation  of 
contracts  had  not  existed ; l  and  that  such  a  reservation  prevents  the  powers 
of  franchises  conferred  in  the  charter  from  becoming  contracts,  though  they  do 
constitute  grants  by  the  legislature. 

Other  provisions  of  the  federal  and  state  constitutions  may  protect  and 
secure  from  legislative  interference  many  valuable  features  of  such  grants;  and 
a  right  to  amend  or  repeal  franchises'  and  charters  granted  cannot  be  con- 
strued so  as  to  permit  the  legislature  to  change  them.  Constitutional  limita- 
tions upon  legislative  authority  would  prevent  any  attempts  made  in  this  way 
to  alter  or  amend  vested  rights  the  same  as  in  any  other  case.  Without 
regard  to  any  question  of  the  obligation  of  contracts  contained  in  charters, 
the  right  of  legislative  interference  with  the  rights  of  corporations  should  be 
measured  by  the  public  interest  in  those  affairs.  If  judged  from  this  stand- 
point, quasi  public  corporations  must  come  in  for  the  largest  share  of  control. 
In  many  acts  of  other  classes  of  private  corporations  the  public  has  no 
interest  whatever,  and  an  attempted  legislative  interference  which  would  be 
valjd  in  the  first  case  would  be  invalid  in  the  second.2 

The  effect  of  such  a  reservation  of  power  to  the  legislature  to  amend  or 
repeal  the  charter  of  a  company  is  shown  in  a  case  decided  in  Rhode  Island. 
The  legislature  passed  a  law  which  required  employers  to  pay  their  employees 
on  the  day  of  their  discharge  all  wages  earned  by  them  without  abatement  or 
reduction,  and  providing  a  penalty  for  their  failure  to  pay  as  the  statute 
required.  The  court  held  that  so  far  as  natural  persons  were  concerned  the 

1  See  Sinking  Fund  Cases,  99  U.  S.  700.  38  Amer.  &  Eng.  Ency.  Law  628. 


§  8/1.          OPERATIONS  PRELIMINARY    TO    CONSTRUCTION.  576 

law  was  unconstitutional  because  it  had  the  effect  of  impairing  the  obligation 
of  contracts  and  of  limiting  the  right  to  contract,  but  that  in  respect  to  a 
corporation,  whose  charter  the  legislature  reserved  the  power  to  alter  and 
repeal,  the  constitution  was  not  violated;  that  all  the  powers  a  corporation 
has  are  created  and  granted  by  the  legislative  authority,  and  that  by  accepting 
the  charter  the  company  agreed  that  they  might  be  amended  according  to  law. 
The  Rhode  Island  court  even  went  further  and  held  that  the  power  of  a  cor- 
poration to  contract,  granted  by  its  charter,  was  not  such  a  property  that  the 
act  of  the  legislature  in  modifying  or  limiting  it  could  be  called  a  taking  away 
of  the  company's  property  without  compensation.1 

An  act  exempting  city  water-works  from  taxation  so  long  as  they  should 
be  unproductive  was  held  not  to  give  a  contract  right,  so  as  to  prevent  its 
repeal  by  the  constitution.2 

If  the  power  to  amend,  alter,  or  repeal  the  charter  be  reserved,  it  is 
evident  that  there  was  no  intention  to  make  the  grant  of  certain  franchises  an 
irrevocable  gift.  Belonging  to  this  class  are  those  franchises  which  exempt 
the  company's  property  from  taxation,  or  which  confer  the  right  to  fix  such 
charges  as  a  railroad  company  shall  deem  reasonable,  and  in  general  all  rights, 
privileges,  and  immunities  derived  by  the  company's  charter  directly  from  the 
state. 3 

Whatever  rights,  franchises,  or  powers  owe  their  existence  to  the  granting 
clause  of  the  charter  are  lost  when  it  is  repealed.  Therefore  the  legislature 
may  make  any  alterations  or  amendments  of  a  charter  granted  which  will  not 
defeat  or  substantially  impair  the  object  of  the  grant  or  any  rights  which  are 
vested  under  it  and  which  the  legislature  shall  deem  necessary  to  secure  either 
that  object  or  any  public  right. 

There  are  many  things  relating  to  the  public  duties  of  corporations,  such 
as  transportation  companies,  telegraph  and  telephone  companies,  water,  gas, 
and  electric  companies,  and  other  companies,  which,  by  reason  of  the  right 
to  amend  or  repeal  being  reserved,  are  made  peculiarly  subject  to  legislative 
control  and  are  freed  from  any  question  of  an  obligation  of  contract  contained 
in  their  charters.  It  is  not,  however,  necessary  that  the  right  to  amend  be 
reserved  in  order  that  such  right  may  be  exercised  and  sustained.  The  doc- 
trine that  the  police  powers  of  a  state  cannot  be  bargained  away  is  so 
universally  accepted  that  the  legislature  may  exercise  such  a  control  over  such 
corporations  in  many  cases.  Where  such  a  reservation  has  been  made,  it  has 
been  held  that  a  railroad  company  might  be  required  to  build  a  double  track 
and  station-house,  or  to  change  its  grade  and  alter  its  bridges  for  purposes 
of  safety  and  convenience.  It  may  be  compelled  by  general  or  special  laws 
to  make  changes  in  the  level,  grade,  and  surface  of  the  roadbed,  or  to  erect 

1  State  v.  Brown,  etc.,  Mfg.  Co.  (R.  I.),  2  City  of    Newport    v.    Commonwealth 

39  Amer.   &  Eng.  Corp.   Cas.   190  [1892].  (Ky.),  50  S.  W.  Rep.  845  [1899"]. 

And  see  Wait's  Engin.  and  Arch.  Jurisp.,  S8  Amer.  &  Eng.  Ency.  Law  628. 
£ec.  144. 


5/7  CHARACTER   AND    KINDS   OF  FRANCHISES.  §  873. 

new  structures  and  crossings  over  another  railroad  or  of  highways,  or  to  build 
station-houses  at  particular  places  and  in  a  particular  manner.  It  has  be^n 
held  that  the  legislature  may  prescribe  by  whom,  in  what  manner,  and  under 
whose  supervision  the  work  required  to  make  changes  of  grade,  roadbed,  etc., 
should  be  accomplished,  and  in  what  proportion,  according  to  their  respective 
interests,  it  should  be  paid  for  by  the  parties  affected.  Railroad  companies 
have  also  been  required  to  make  extensions  of  their  lines,  to  make  new  con- 
nections, and  to  consolidate  with  other  companies;  provided,  however,  that 
in  none  of  these  instances  a  material  change  in  the  purpose  of  the  corporation 
or  an  interference  with  the  rights  of  individual  stockholders  is-  effected.1 

Under  such  a  reserved  power  it  has  been  held  that  the  legislature  may  vary 
the  measure  and  thus  enlarge  the  proportion  of  the  profits  which  a  mutual 
life-insurance  company  is  required  by  the  terms  of  its  charter  to  pay  to  a 
charitable  institution.  Likewise  various  legislative  acts  have  been  sustained 
which  have  increased  the  liability  of  the  stockholders. 

872.  Power  to  Amend  and  Repeal  Limited. — It  is  well  settled  that  the 
power  of  the  legislature  to  amend  and  repeal  franchises  of  charters  is  limited. 
Such  a  power  is  not  arbitrary  and  does  not  authorize  a  material  change  in  the 
corporate  enterprise  so  as  to  work  a  wrong  under  the  guise  of  an  amendment. 
The   legislature    cannot   impair   the   vested    rights   of   stockholders.      Their 
interest  in  the  corporate  property  may  not  be  annihilated  by  the  repeal  of  the 
charter.     Power  is  vested  in  the  courts  to  protect  those  interests.     Though 
the  consent  of  the  corporation  may  not  be  necessary  to  the  repeal,  yet  under 
the  power  reserved  to  the  legislature  an  alteration  cannot  be  enforced  upon  it 
until  accepted  by  the  corporation,  or  at  least  by  a  majority  of  its  stockholders. 

873.  Limitation   as  to   Property  and    Contracts. — When   rights   under 
a  charter  have  been  acquired  and  become  vested,  no  amendment  or  alteration 
of  the  charter  can  take  away  the  property  or  rights  which  have  become  vested 
in  the  legitimate  exercise  of  the  powers  granted.      Direct  legislation  by  which 
a  state  could  appropriate  property  which  was  the  subject  of  the  grant  in  the 
charter  or  acquired  under  it  would  be  unconstitutional,  and  such  an  authority 
obtained  through  a  reservation  in  the  charter  would  be  equally  so.     Personal 
and  real  property  accumulated  by  a  corporation  during  its  lawful  existence, 
rights  secured  under  contracts,  or  choses  in  action  so  acquired  and  which  do- 
not  from  their  nature  depend   upon  the  general   powers  conferred  by  the 
charter,  may  not  be  destroyed  by  such '  a  repeal.     The  courts  may,   if  the 
legislature  does  not,  provide  some  special  remedy  and  enforce  such  rights  by 
the  means  in  their  power.      Mortgages  made  under  powers  originally  granted 
cannot  be  vacated;  debts  contracted  cannot  be  released.     The  reserved  power 
authorizes  the  state  to  provide  for  the  due  performance  of  contracts  already 
entered  into.     The  legislature  may  not  establish  rules  in  regard  to  the  manage- 
ment and  disposal  of  the  assets  of  a  corporation  so  that  they  shall  be  diverted 

1  8  Amer.  &  Eng.  Ency.  Law  630. 


§8/4-          OPERATIONS   PRELIMINARY    TO    CONSTRUCTION.  578 

from,  or  divided  unfairly  and  unequally  among,  the  creditors  and  thus  impair 
the  obligation  of  contracts,  nor  so  that  a  part  of  such  assets  which  properly 
belong  to  the  stockholders  shall  be  diverted  and  thus  injure  vested  rights. 

Thus  while  the  power  of  Congress  over  waterways  connected  with  the 
great  rivers  of  the  country  is  supreme  whenever  it  chooses  to  exercise  the 
same,  yet,  before  it  has  acted,  the  legislative  power  of  the  state  within  whose 
borders  the  stream  flows  is  competent  to  charter  a  corporation  to  improve  the 
same,  and  to  give  it  a  franchise  to  collect  tolls.  A  franchise  thus  granted  is 
a  vested  right,  and  if  Congress  thereafter,  by  condemnation,  takes  such  im- 
provements, it  is  bound  to  make  just  compensation  for  the  value  of  the  fran- 
chise, as  well  as  for  the  physical  property  taken. l 

A  reserved  right  to  amend  or  repeal  when  once  exercised  is  not  exhausted. 
It  may  prevent  the  grant  itself  from  becoming  what  it  otherwise  would 
become,  i.e.,  a  contract  with  the  state.  A  charter  with  such  a  provision 
becomes  a  mere  privilege  subject  at  any  time  to  be  withdrawn  or  modified  at 
the  will  of  the  legislature.  Sometimes  this  right  to  repeal  or  alter  is  reserved 
by  a  constitutional  provision,  and  at  other  times  by  general  statute  in  force 
at  the  time  the  corporation  was  created.  The  question  as  to  whether  under 
the  reserved  power  the  reservation  is  wise,  or  one  consistent  with  public  in- 
terest or  the  interest  of  the  company,  is  for  the  legislature,  and  not  to  be 
determined  by  the  courts.  It  cannot  be  presumed  that  the  legislature  exer- 
cised the  power  arbitrarily  or  unjustly.  When  the  right  to  repeal  the  charter 
on  the  happening  of  a  certain  event  is  reserved  to  the  legislature  it  may  enact 
the  repeal  whenever  the  event  happens  without  first  invoking  the  judgment  of 
the  court.  If  the  exercise  of  a  reserved  right  depend  upon  the  misuse  or  the 
abuse  of  the  franchise,  the  authorities  are  not  decided  as  to  whether  the  legis- 
lature shall  determine  the  fact  or  whether  it  shall  first  be  determined  by  the 
courts. 

874.  Mortgage  Sale  and  Transfer  of  Franchises, — The  franchises  of 
many  corporations  are  practically  of  no  value,  and  therefore  the  question  as 
to  the  power  of  selling  and  mortgaging  such  franchises  does  not  often  arise. 
If  the  franchise  of  a  corporation  be  valuable  in  itself  or  be  conferred  with 
subordinate  franchises  having  more  or  less  the  character  of  monopolies,  it  will 
usually  be  found  to  have  been  granted  for  public  purposes,  and  to  require 
the  performance  of  certain  public  duties  for  which  the  corporation  will  be 
held  responsible.  The  cases  which  involve  the  right  to  transfer  franchises 
relate  chiefly  to  matters  similar  to  the  foreclosure  of  railroad  mortgages,  which 
mortgages  cover  not  only  the  corporeal  property,  but  also  the  franchise  of  the 
company.  The  right  to  alienate  franchises  refers  to  such  mortgages  as  cover 
not  only  tangible  property,  but  the  franchises,  and  to  other  means  of  transfer 
of  the  franchises  of  railroads  and  other  corporations  of  a  guasi-public  charac- 

1  Monongahela      Navigation      Co.      v.        Bridge  Co.  v.  U.   S.,   105  U.  S.  470,  dis- 
United    States,    13    Sup.    Ct.    Rep.    622;       tinguishcd. 


5/9  CHARACTER  AND   KINDS   OF  FRANCHISES.  §8/4. 

ter.  Whether  or  not  the  doctrine  will  be  confined  to  this  class  of  guasi-public 
corporations  is  not  fully  determined,  but  it  is  a  settled  rule  supported  by  the 
weight  of  authority  that  a  corporation  cannot  mortgage,  sell,  or  transfer  its 
franchises  unless  expressly  authorized  by  the  legislature  to  do  so.  The  rule 
is  not  universal,  but  it  is  generally  held  that  when  a  franchise  is  conferred 
upon  a  corporation  the  legislature  considers  the  character  of  the  grantee  and 
the  restrictions  which  it  places  upon  the  corporation,  and  that  therefore  such 
corporation  cannot  do  anything  which  shall  amount  to  a  renunciation  of  its 
duty  to  the  public,  or  directly  and  necessarily  disable  itself  from  performing 
it ;  that  it  cannot,  therefore,  convey  away  its  franchise  and  corporate  rights. 
If  a  company  be  granted  a  charter  or  franchise  intended  in  a  large  measure 
to  be  for  the  public  good,  the  due  and  proper  performance  of  its  duties  is  the 
consideration  of  the  grant,  and  therefore  any  contract  which  disables  the  cor- 
poration from  discharging  its  functions  by  seeking  without  the  consent  of  the 
state  to  transfer  its  rights  and  powers  to  others,  and  to  relieve  itself  of  the 
burdens  which  the  charter  imposes,  is  a  violation  of  the  contract  with  the 
state,  and  is  therefore  void  as  against  public  policy. 1 

In  determining  the  right  to  alienate  a  franchise  the  terms  in  which  the 
authority  is  given  must  be  regarded,  and  the  vital  part  of  the  transaction  is 
the  law  under  which  it  is  made.  Sometimes  the  charter  or  general  laws  con- 
tain express  authority  to  mortgage  or  alienate  franchises  as  well  as  other 
property,  but  even  in  such  cases  the  literal  transfer  of  a  franchise  is  never 
executed.  Depending  upon  the  power  conferred,  such  a  sale  may  amount  to 
a  complete  or  partial  surrender  of  a  franchise  and  to  the  investing  of  the 
transferee  with  corporate  powers,  such  as  the  terms  of  the  grant  indicate  shall 
be  conferred.  Thus  when  a  special  statute  undertook,  upon  a  sale  of  a  mort- 
gage given  by  a  railroad  company,  to  invest  the  purchasers  with  corporate 
capacity  and  to  authorize  them  to  reorganize,  create  new  stock,  and  elect  a 
new  board  of  directors,  this  was  held  to  be  in  effect  an  original  act  of  incor- 
poration. Even  though  the  transaction  be  declared  to  be  a  transfer,  sale,  or 
conveyance  of  a  franchise  to  be  a  corporation,  it  only  amounts  to  a  surrender 
of  the  old  charter  and  a  new  grant  to  the  transferees  with  similar  privileges, 
as  when  general  statutes  provide  that  the  purchaser  of  a  railroad  under  fore- 
closure of  the  mortgage  may  create  a  new  corporation  and  thus  practically 
succeed  to  all  the  franchises  of  the  old  company,  including  the  right  to  be  a 
corporation.2 

A  transfer  of  a  franchise  by  a  corporation  if  made  without  legislative 
authority  may  be  ratified  by  subsequent  enactment  of  the  legislature,  and 
such  ratification  is  held  to  constitute  a  grant  of  the  franchise.  Under  the 
terms  of  a  power  to  transfer,  an  alienation  of  certain  franchises  under  legis- 
lative authority,  as,  for  example,  the  foreclosure  of  a  railroad  mortgage  which 
covers  the  company's  franchises,  may  not  necessarily  deprive  the  company  of 

*8  Amer.  &  Eng.  Ency.  Law  634,  634^.  J8  Amer.  &  Eng.  Ency.  Law  634*:. 


§8/5-          OPERATIONS   PRELIMINARY    TO    CONSTRUCTION.  580 

all  its  franchises,  including  that  of  its  corporate  existence,  for  the  surrender  of 
this  is  not  always  a  necessary  part  of  the  transaction.  The  legislative  grant 
of  power  to  sell,  mortgage,  and  transfer  property  and  franchises,  while  it 
includes  generally  the  alienation  of  such  franchises  as  are  essential  to  the 
property,  will  not  imply  any  more.  The  franchise  to  build,  own,  or  manage 
a  railroad  is  not  necessarily  a  corporate  right,  but  may  be  enjoyed  by  a  natural 
person.  Therefore,  under  a  power  to  sell  or  mortgage  the  property  and  fran- 
chises of  a  company,  it  was  held  that  the  mortgagee,  bondholders,  or  pur- 
chasers at  the  mortgage-foreclosure  sale  did  not  acquire  as  part  of  the  sub- 
stantial rights  intended  to  be  secured  the  franchise  of  corporate  existence. 

A  right  to  mortgage  franchises  would  be  of  little  value  could  the  mortgage 
only  pass  the  corporeal  property  without  the  franchise.  The  necessary  and 
just  construction  is  that  on  the  foreclosure  of  a  railroad  mortgage  the  pur- 
chaser acquires  the  right  to  operate  the  railroad;  or  he  may  exercise  the 
franchise  of  using  streets  and  of  supplying  a  city  with  gas,  where  the  mortgage 
foreclosed  is  that  of  the  franchise  of  a  gas  company.  When  the  power  con- 
ferred is  to  mortgage  effects,  contracts,  etc.,  the  right  would  be  useless  did  it 
not  imply  the  right  to  mortgage  the  franchise,  not,  as  already  explained,  the 
franchise  to  be  a  corporation,  but  those  franchises  which  are  appropriate  to 
the  nature  of  the  property  mortgaged. 

Where  a  water  company  mortgaged,  with  covenants  of  warranty,  f<all  the 
right,  privileges,  immunities,  franchises,  and  powers  which  were  granted  in 
and  by  "  a  certain  city  ordinance,  it  was  held  that  the  mortgage  covered  all 
franchises  owned  by  the  company  and  enumerated  in  said  ordinance,  whether 
the  same  were  in  fact  granted  by  the  city  or  by  the  state.1 

In  Washington  state  a  franchise  granted  by  a  city  to  an  electric  company 
and  its  assigns,  authorizing  it  to  erect  and  maintain  in  the  streets  poles  with 
suitable  cross-arms  on  which  to  string  wires  for  transmitting  electric  currents, 
is  a  local  easement,  and  therefore  assignable  without  the  consent  of  the  city.* 

875.  Transfer  of  Franchise  of  Eminent  Domain. — The  transfer  of  this 
franchise  cannot  be  made  without  legislative  authority.  A  power  given  to  a 
telegraph  company  to  lease  lines,  fixtures,  and  apparatus  has  been  held  not  a 
power  to  build  new  lines.  So,  too,  a  power  authorizing  a  railroad  to  lease 
roads  does  not  authorize  the  leasing  of  unfinished  roads,  or  give  to  the  lessee 
any  power  of  eminent  domain,  but  this  right  remains  in  the  lessor,  and  the 
legislature  may  deal  exclusively  with  the  latter  in  amending  charter  provisions 
respecting  it.  On  the  other  hand,  one  who  purchases,  at  a  judicial  sale,  an 
unfinished  railroad,  and  who  by  the  charter  succeeds  to  all  the  estate  and 
property  of  the  original  company,  and  to  all  its  contracts,  franchises,  rights, 
privileges,  and  immunities,  does  thereby  acquire  the  power  of  eminent 
domain.  The  right  of  a  company  to  have  the  damages  for  the  appropriation 

1  Andrews  v.  National  F.  &  P.  Works  2  Commercial  E.  L.  &  P.  Co.  v.  Tacoma, 

(C.  C.  A.),  61  Fed.  Rep.  782.  50  Pac.  Rep.  592. 


58 1  CHARACTER  AND   KINDS   OF  FRANCHISES.  §  876. 

of  land  to  its  uses  assessed  in  a  particular  mode  is  not  a  franchise  which 
passes  to  the  purchaser  of  its  property.  It  has  been  held  to  be  a  personal 
privilege  of  the  company  and  not  transferable. 

876,  Transfer  of  Franchises  of  Exemption  from  Taxation. — When  a 
statute  authorizes  the  sale  of  a  railroad  with  all  the  rights,  franchises,  privi- 
leges, and  immunities  enjoyed  by  the  defaulting  company,  it  does  not  transfer 
an  exemption  from  taxation  because  a  new  constitution  prohibits  such  a 
grant.  A  foreclosure  of  a  railroad  mortgage  executed  under  a  power  to 
operate  "on  the  credit  of  a  company  and  on  the  mortgage  of  its  charter  and 
works"  confers  on  the  purchaser  only  those  franchises  which  have  been 
granted  as  appropriate  to  the  construction,  maintenance,  operation,  and  use 
of  the  railroad  as  a  public  highway,  and  to  the  right  to  make  profit  therefrom, 
and  it  does  not  include  an  exemption  from  taxation.  The  earlier  decisions 
wherein  the  franchise  of  exemption  from  taxation  has  been  held  to  be  trans- 
ferred by  mortgage  and  sale  were  so  decided  because  the  terms  of  the  statute 
and  the  surrounding  circumstances  indicated  such  an  intention  on  the  part  of 
the  legislature,  and  the  same  construction  would  be  applied  to-day  where 
property  is  exempted  without  reference  to  its  ownership. 

When  the  exemption  from  taxation  is  not  a  corporate  franchise  in  the 
sense  that  it  is  not  necessary  to  the  operation  of  the  company's  business,  it  is 
then  to  be  classed  with  franchises,  and  has  therefore  been  held  to  be  included 
in  the  reservation,  by  the  state,  of  power  to  withdraw  the  franchise  of  the 
corporation. 1 

An  authority  to  mortgage  the  franchise  of  a  corporation  necessarily  implies 
the  power  to  bring  the  franchise  so  mortgaged  to  a  sale.  It  has  been  held 
that  authority  to  one  company  to  purchase  the  franchise  and  property  of 
another  was  implied  authority  to  any  corporation  which  was  willing  to  sell. 
If  a  railroad  company  has  authority  to  purchase  and  to  sell  all  kinds 
of  property  of  every  nature  and  quality,  and  to  incorporate  its  stock  with  that 
of  another  company,  it  may  be  held  to  have  the  power  to  sell  the  railroad  to 
another  company  just  authorized  to  purchase  it.  A  mortgage  which  includes 
the  franchise  of  a  company  does  not  invalidate  its  effect  upon  the  property 
which  the  company  has  power  to  mortgage. 

The  question  whether  the  authority  permits  a  conveyance  of  franchise 
seems  to  be  merely  one  between  the  state  and  the  corporation,  and  a  question 
with  which  third  persons  have  nothing  to  do.  Where  the  act  of  an  electric 
street  railway  in  crossing  a  railroad  company's  tracks  on  a  public  highway 
does  not  take  property  of  the  complainant,  and  does  not  work  some  damage 
to  it,  differing  in  kind  from  the  damage  which  the  complainant  would  suffer 
in  common  with  the  rest  of  the  community,  the  railroad  company  has  no 
right  to  an  injunction  merely  because  the  respondent  proceeds  ultra  vires  or 
usurps  a  franchise.2 

*8  Amer.  &  Eng.  Ency.  Law  634/fc.  2  Philadelphia   R.    Co.    v.    Wilmington 

Ry.  Co.,  38  Atl.  Rep.  1067. 


§8/7.          OPERATIONS  PRELIMINARY   TO    CONSTRUCTION.  $82 

A  provision  in  an  act  incorporating  a  water  company  that  the  act  shall  be 
void  unless  the  work  is  completed  in  one  year  does  not  prevent  the  company 
from  extending  its  works,  after  the  expiration  of  the  year,  to  meet  the  neces- 
sities of  the  town  to  which  the  water  is  furnished.1 

877.  Sale  of  Franchises  on  Execution. — At  common  law  the  franchise  of 
a  corporation  cannot  be  seized  and  sold  on  execution,  the  reason  being  that 
franchises  are  intangible  and  incapable  of  delivery  by  the  sheriff  to  the  pur- 
chaser.    Another  reason  often  stated  is  that  where  franchises  are  granted  for 
the  furtherance  of  public-  purposes,  creditors  by  enforcing  their  claims  would 
render  the  corporation  incapable  of  fulfilling  its  public  duties.     The  latter 
reason  is  widely  accepted  as  correct,  but  it  need  not  apply  to  such  property 
as  is  not  necessary  to  the  proper  performance  of  those  duties;  nor  need  it  be 
extended  to  the  franchise  of  corporations  as  owe  no  such  duties.     Such  ques- 
tions may  arise  where  a  mortgage  has   been  made  which   Covers  both  the 
property  and  the  franchise  of  the  corporation.     The  cases  show  great  confu- 
sion on  the  subject. 

The  common  law  has  been  changed  by  general  and  special  statutes.  By 
the  constitutions  of  Illinois,  Nebraska-,  West  Virginia,  Missouri,  Arkansas, 
and  Texas  the  rolling  stock  and  movable  property  of  railroads  are  declared  to 
be  personal  property,  and  the  legislatures  can  pass  no  laws  exempting  it  from 
execution.  When  the  sale  of  franchises  is  authorized  by  statutes,  the 
authority  to  sell  is  derived  solely  from  those  statutes,  and  the  sale  can  be  made 
in  no  other  manner  than  that  pointed  out  therein. 

Prior  to  the  consolidation  of  the  two  cities  a  board  of  trustees  held  exclu- 
sive control  and  management  of  the  New  York  and  Brooklyn  Bridge,  and,  by 
contract,  had  conferred  upon  plaintiff  the  privilege  of  maintaining  its  tube 
line  across  the  bridge.  It  was  held  that  this  action  was  within  the  scope  of 
their  authority,  and  was  binding  on  the  commissioner  who  succeeded  them, 
subject  to  his  continuing  power  to  regulate,  manage,  and  maintain  the  bridge, 
and  to  his  approval  and  reasonable  regulations  in  respect  to  plaintiff's  plans 
and  manner  of  construction.2 

By  its  act  of  incorporation  plaintiff  had  received  authority  to  construct 
and  operate  its  pneumatic  tubes  within  and  between  cities.  It  was  held  that 
this  did  not  by  itself  authorize  it  to  lay  the  tubes  along  the  New  York  and 
Brooklyn  Bridge  without  further  authority  from  the  officers  in  control  thereof.2 

878.  Remedies   against   Corporations  for  the   Enforcement   of  Public 
Duties — There  are  three  remedies  to  be  had  for  the  enforcement  of  the  public 
duties  of  a  corporation.     They  are  mandamus,  quo  warranto,  and  indictment. 
The  action  of  mandamus  against  a  railroad  corporation  to  compel  it  to  exer- 
cise its  duties  as  a  public  carrier  of  goods  and  passengers  is  brought  by  the 
people  through  the  attorney-general.     It  is  also  a  proper  remedy  to  compel  a 

IWest  Springfield  v.  West  Springfield  'New  York  Mail  &  Newspaper  Transp. 

Aq.  Co.  (Mass.),  44  N.  E.  Rep.  1063.  Co.  v.  Shea,  51  N.  Y.  Supp.  563. 


583  CHARACTER   AND    KINDS   OF  FRANCHISES.  §  88 1. 

railroad  company  to  deliver  to  a  particular  elevator  whatever  grain  in  bulk 
may  be  consigned  to  it  upon  the  line  of  its  road,  or  to  compel  the  operation 
of  a  railroad  notwithstanding  there  is  a  strike  of  its  employees,  and  to  operate 
its  road  when  it  threatens  to  abandon  it.  In  order  for  a  court  to  issue  a 
mandamus  the  reciprocal  right  and  obligation  must  be  complete,  legal,  and 
perfect.  If  a  company  fails  to  use  or  atfuses  a  public  trust  and  the  powers 
vested  in  it  by  the  state,  it  is  within  the  sound  discretion  of  the  attorney- 
general  to  determine  whether  to  apply  for  a  mandamus  or  to  have  the  charter 
of  the  company  annulled.1 

A  private  person  may,  without  the  intervention  of  the  attorney-general, 
move  for  a  mandamus  to  enforce  the  performance  of  a  public  duty  not  due  to 
the  government  as  such.  But  the  fact  that  an  injured  person  has  private 
remedies  for  the  damages  which  he  has  suffered  by  neglect  of  the  corporation 
to  perform  its  duties  precludes  the  state  from  its  remedy  by  mandamus. 

879.  Extinguishment  of  Corporate  Franchises. — The  extinguishment  of 
a   corporate  franchise,   or  the  dissolution  of  the  corporation,   as  it   is  often 
spoken  of,  may  happen  in  several  ways,   viz:  (i)  by  the  expiration  of  the 
time  limited  in  the  charter;   (2)  upon  the  happening  of  a  contingency  pre- 
scribed by  the  charter;  (3)  by  the  surrender  of  the  franchise  to  the  state; 
(4)  by  act  of  the  legislature;   (5)  by  failure  of  an  integral  part  of  the  corpora- 
tion;  (6)  by  forfeiture  of  the  franchise  in  a  proper  judicial  proceeding. 

When  the  period  of  time  during  which  a  corporate  existence  was  to  con- 
tinue has  expired  the  corporation  ceases  to  exist,  and  it  cannot  be  continued 
even  by  the  unanimous  consent  of  the  shareholders.  The  legislature  cannot, 
by  renewing  the  charter,  revive  the  debts  and  liabilities  owing  to  the  original 
corporation.  If  it  is  expressly  provided  in  the  charter  that  the  corporation 
shall  exist  for  a  definite  period  of  time,  and  that  its  business  shall  be  con- 
ducted throughout  that  period,  a  majority  of  the  shareholders  cannot  shorten 
the  period  even  with  the  consent  of  the  state.  If,  however,  the  intention 
expressed  in  the  charter  be  merely  to  provide  a  limitation  upon  the  duration 
of  the  franchise,  the  majority  of  the  shareholders  may  wind  up  the  business  of 
the  corporation  whenever  they  deem  it  expedient  so  to  do.2 

880.  Extinguishment   of  Franchise   on   Contingency. — A    franchise  is 
sometimes  granted  where  the  charter  requires  that  the  existence  of  the  corpora- 
tion shall  depend  upon  its  performing  or  complying  with  certain  requirements, 
which  if  they  be  not  performed  and  complied  with,  the  franchise  is  in  express 
terms  declared  forfeited  and  terminated.      In  such  case  the  non-performance 
or  fulfillment  of  the  requirements  of  the  statute  will  cause  an  actual  termina- 
tion and  dissolution  of  the  company  without  any  act  on  the  part  of  the  state. 

881.  Extinguishment  by  Surrender. — A  private  corporation  may  terminate 
its  corporate  existence  by  surrender  of  its  franchises  to  the  state.     To  effect 

1  8  Amer.  &  Eng.  Ency.  Law  617.  24  Amer.  &  Eng.  Ency.  Law  295. 


§883.  OPERATIONS  PRELIMINARY    TO    CONSTRUCTION.  584 

-•such  a  termination  the  surrender  must  be  accepted  by  the  state  in  order  that 
the  rights  of  creditors,  and  the  possible  right  of  taxation  which  the  state  itself 
may  have,  shall  be  protected.  Many  of  the  states  provide  by  statute  a  means 
of  voluntary  dissolution.  Non-user  by  a  corporation  of  its  franchise  for  a  long 
period  of  time  may  raise  a  presumption  that  the  franchise  has  been  surrendered 
to  the  state.  Neglect  to  elect  officers  and  to  perform  corporate  acts  has  been 
held  not  of  itself  to  put  an  end  to  corporate  existence.  The  disposal  of  all 
the  property  of  a  corporation  or  the  ownership  of  all  its  shares  by  one  person 
will  not  work  a  dissolution. 

882.  Extinguishment   by  Act   of  Legislature. — Under  a  clause  of  the 
Constitution  of  the  United  States  which  provides  that  no  state  shall  pass  any 
law  impairing  the  obligation  of  contracts,  the  charter  of  a  private  corporation 
has  been  construed  to  be  an  executed  contract  between  the  state  and  the 
incorporators.     The  legislature  cannot  repeal,  impair,  or  alter  it  against  the 
consent  or  without  the  default  of  the  corporation.      By  reason  of  such  con- 
.structton  it  is  customary  to  provide  in  special  charters  of  corporations  or  in 
the  general  corporation  laws  that  the  state  shall  have  the  right  to  repeal,  alter, 
or  amend  the  charter  in  its  discretion.     If  the  power  be  reserved  conditionally, 
.as  in  the  case  of  a  certain  event,  the  legislature  may  pass  the  repeal  whenever 
the  event  comes  to  pass.     Under  a  reservation  permitting  the  legislature  to 
alter  the  charter  of  a  corporation  the  alteration  must  be  reasonable  and  within 
the  scope  and  object  of  the  corporation  as  it  was  originally  chartered.      In 
•determining  whether  an  act  of  the  legislature  repeals  a  charter,  the  ordinary 
rules  of  construction  are  applied. 

883.  Extinguishment   by   Failure   of  an  Integral   Part. — A  corporate 
franchise  may  become  extinguished  when  it  has  lost  an  integral  part  of  its 
organization,   which  the  corporation  itself  has  no  means  of  supplying,   and 
without  which  the  corporate  powers  cannot  be  exercised.     Such  an  extinguish- 
ment might  occur. in  the  case  of  a  municipal  or  ecclesiastical  corporation,  and 
in  the  case  of  clubs  and  other  societies  where  all  of  the  members  are  dead  or 
departed.     It  has  been  held  that  if  the  corporation  refused  to  elect  officers 
until  all  are  dead  who  could  make  an  election,  the  corporation  is  dissolved. 
Whenever  a  corporation  is  reduced  to  such  a  state  as  to  be  incapable  of  acting 
and  continuing  itself  it  is  at  an  end. 

Such  an  extinguishment  could  not  occur  in  the  case  of  a  private  corpora- 
tion with  transferable  shares  and  whose  officers  are  elected  by  the  stockholders. 
In  such  a  corporation  the  membership  is  always  continued  by  the  gift,  sale, 
bequest,  or  descent  of  shares  of  stock.  The  shares  of  stock  must  belong  to 
some  person  or  persons,  and  those  persons  are  the  members  of  the  corpora- 
tion. Property  is  held  not  to  be  an  essential  or  integral  part  of  a  corporation, 
.and  its  existence  is  not  terminated,  therefore,  by  the  insolvency  of  the  corpora- 
tion, nor  by  the  appointment  of  a  receiver,  nor  by  proceedings  in  bankruptcy.1 

*4  Amer.  &  Eng.  Ency.  Law  302. 


$85  CHARACTER   AND    KINDS   OF  FRANCHISES.  §  886. 

884.  Extinguishment  by  Forfeiture.— A  franchise  of  a  company  may  be 
extinguished  by  forfeiture  of  its  charter  in  a  judicial  proceeding  where  the 
cause  of  forfeiture  is  judicially  ascertained  and  adjudged.     The  suit  to  deter- 
mine the  forfeiture  must  be  at  the  instance  and  under  the  authority  of  the 
state.     There  are  two  modes  of  procedure  at  common  law  to  enforce  such  a 
forfeiture :  one  by  scire  facias,  the'  other  by  a  writ  of  quo  warranto  or  by  in- 
formation in  the  nature  of  quo  warranto.      Such  suits  are  instituted  when  a 
corporation  has  been  guilty  of  misuser  or  non-user  of  its  franchise,  or  when  it 
has  departed  from  the  objects  for  which  it  was  created,  or  when  it  has  been 
guilty  of  abreach  of  trust,  and  is  therefore  liable  to  have  its  franchise  forfeited. 
If  a  corporation  neglect  to  perform  duties  which  it  has  assumed  for  the  benefit 
of  the  public,  or  which  have  been  imposed  upon  it  by  reason  of  public  policy, 
it  renders  itself  liable  to  forfeiture.      Such  duties  have  been  required  to  be 
performed  as  a  condition  subsequent  to  the  granting  of  the  charter. 

When  a  private  corporation  has  become  wholly  insolvent  and  is  prevented 
from  carrying  on  its  business  with  safety  to  its  creditors  and  to  the  public,  its 
affairs  should  be  wound  up.  A  failure  on  the  part  of  the  corporation  to  per- 
form its  duties  in  this  respect  may  be  punished  by  a  dissolution  at  the  suit  of 
the  state.  It  is  not  every  wrongful  act  committed  by  a  corporation  that  will 
revoke  its  charter,  though  a  single  act  may  be  a  ground  for  forfeiture. 
Repeated  failures  to  act,  which  are  not  omitted  willfully  or  negligently  and 
which  do  not  injure  any  one  and  are  not  expressly  forbidden  by  the  charter, 
will  not  be  sufficient  reason  for  a  revocation  of  the  charter. 

885.  Effect  of  Extinguishment. — When  a  corporation  has  lost  its  franchise 
by  forfeiture,  surrender,  or  otherwise,  it  wholly  ceases  to  exist  in  the  eyes  of 
the  law  and  will  no  longer  be  recognized  as  a  corporate  body.      Debts  either 
due  to  or  from  the  corporation  are  extinguished,  and  suits  which  are  brought 
by  or  against  it  are  abated.     In  this  country  when  a  corporation  is  dissolved 
it  is  a  rule  that  the  capital  or  property  and  debts  due  to  an  ordinary  trading 
and  manufacturing  corporation  constitute  a  trust  fund  for  the  payment  of 
creditors  and  stockholders.      The  courts  will  lay  hold  of  such  a  fund  wherever 
it  may  be  found  and  apply  it  to  the  purposes  of  the  trust,  and  they  will  never 
allow  a  trust  to  fail  for  want  of  a  trustee.      Many  of  the  states  have  passed 
statutes  providing  methods  whereby  the  affairs  of  corporations  that  have  been 
dissolved  may  be  wound  up.      They  provide  in  some  states  that  the  company 
shall  continue  as  a  corporate  body  for  the  purpose  of  prosecuting  and  defend- 
ing suits  and  winding  up  its  affairs.      In  other  states  trustees  or  receivers  are 
appointed  for  settling  up  the  affairs  of  the  company.1 

886.  Taxation  of  Franchises. — A  franchise  of  a  corporation  is  deemed  to 
be  property,  and  unless  it  is  granted  by  act  of  Congress  or  expressly  exempted 
it   is  taxable  either  as   property  or  under  the   principle   of  excise.      It   has 
frequently  been  held  that  franchises,  such  as  those  of  a  water  company,  or  of 

1  4  Amer.  &  Eng.  Ency.  Law  308. 


§  8 8 /.          OPERATIONS  PRELIMINARY    TO    CONSTRUCTION.  $86 

a  bridge  company,  or  of  a  railroad  company,  are  property,  and  are  as  proper 
subjects  of  taxation  as  any  other  property.1 

The  United  States  courts  have  held  many  times  that  the  charter  of  a  cor- 
poration does  not  open  to  the  state  any  source  of  revenue;  that  it  creates  a 
valuable  property  which,  like  all  other  property,  the  state  may  require  to  con- 
tribute to  the  support  of  the  government.2  The  franchises  of  telegraph 
companies,  water-works  companies,  steamboat  and  railway  and  other  trans- 
portation companies  have  been  held  subject  to  tax.  A  company  engaged  in 
collecting,  storing,  and  selling  ice  has  been  held  not  a  manufacturing  concern 
and  therefore  within  the  exception  of  companies  subject  to  taxation.3  The 
only  limitation  upon  the  exercise  of  the  power  to  tax  a  franchise  is  in  the  dis- 
cretion of  the  legislature. 

Franchise  taxes  are^  measured  or  determined  in  a  variety  of  ways :  some- 
times of  the  dividends  earned,  at  other  times  by  the  capital  stock  issued,  and 
in  still  others  by  the  extent  of  business  transacted.  It  may  also  depend  on 
the  net  earnings  or  the  gross  receipts,  or  on  the  average  amount  of  deposits, 
on  the  market  value  of  the  shares  of  stock,  or  on  the  amount  of  original  stock 
actually  paid  in. 

It  is  sometimes  quite  essential  that  franchise  taxes  should  be  distinguished 
from  property  taxes,  but  no  satisfactory  rule  for  making  such  a  distinction  has 
yet  been  established.  One  that  is  often  adopted  is  that  a  tax  according  to 
valuation  is  a  tax  on  property,  while  a  tax  imposed  according  to  nominal  value 
or  measured  by  some  standard  of  mere  calculation  may  be  a  franchise  tax. 
The  distinction  arises  in  cases  of  taxation  of  capital  stock  and  of  bank 
deposits,  because  if  the  tax  be  a  franchise  tax,  then  it  cannot  be  avoided  on 
the  ground  that  the  property  of  the  corporation  is  otherwise  taxed  or  that  it 
is  non-taxable. 

887.  Corporate  Charters  and  Franchises. — The  subject  of  franchises,  if  it 
be  made  to  include  charters  of  incorporated  companies,  is  a  broad  one,  and  it 
would  require  a  book  of  considerable  size  to  undertake  to  treat  it  fully  or  in 
anything  like  a  comprehensive  manner  for  the  use  of  lawyers.  There  are  good 
books  upon  the  subject  of  corporations  to  which  the  reader  is  referred  if  he 
desires  to  go  technically  into  the  law  upon  the  subject.  The  purpose  of  this 
book  is,  and  will  be,  to  give  to  the  reader  a  general  knowledge  of  the  law  of 
real  property  and  of  franchises,  and  a  particular  and  detailed  knowledge  of 
those  subjects  with  which  an  engineer,  architect,  or  surveyor  has  most  to  do 
and  to  deal.  The  subject  of  estates  and  of  titles,  and  the  transferring  of  prop- 
erty, or  the  interpretation,  construction,  and  application  of  franchises,  is  the 
legitimate  business  of  a  lawyer  and  should  not  be  undertaken  by  an  engineer. 
The  object  of  treating  the  subjects  at  all  in  this  book  is  to  give  to  the 
engineer,  architect,  or  promoter  such  a  general  knowledge  of  the  subjects 

1  25  Amer.  &  Eng.  Ency.  Law  631,  632.  3  25  Amer.  &  Eng.  Ency.  Law  634. 

2  Burroughs  on  Taxation  168. 


CHARACTER   AND   KINDS   OF  FRANCHISES.  §  887. 

treated  as  shall  enable  him  intelligently  to  understand  the  situation  and  to 
gather  together  such  facts  and  conditions  as  will  present  a  case  fairly  and 
clearly  to  the  attorney  of  the  project,  that  the  latter  may  determine  the  ques- 
tions of  law  without  being  required  personally  to  inspect  or  investigate  the  site 
of  the  proposed  works.  If  that  object  has  been  accomplished,  the  author  may 
congratulate  himself  and  will  feel  that  he  has  done  a  good  service. 


INDEX. 


References  are  to  sections. 

See  also  CONTENTS. 


ABANDONMENT : 

Of  easement,  642-650 

Of  possession,  what  is,  530 

Of  irrigation  rights,  76 

By  tenant,  is  not  a  surrender,  18 

Of  right  of  way  : 

Does  not  occur,  when,  755 

Presumed,  by  non-user,  755 

May  forfeit  rights,  755 

Reversion  to  abutting  owner,  456 
Evidence  tending  to  show,  76 
Loss  or  railroad  by  mortgage  sale,  is  not, 

736 

ABBREVIATIONS  : 

Used  in  a  description,  560,  561 
Judicial  notice  of,  561 

ABUTTING  OWNER: 

(See  also  OWNER,  LANDOWNER.) 
Property  in  streets  and  ways,  441-446 
Sometimes  owns  private  streets,  453 
Eights  of  private  parties  in  public  streets, 

759 

Fee  of  street,  belongs  to,  456  . 
Rights  of,  to  soil  in  street,  442 
Should  own  to  center  of  street  or  stream, 

446 

Who  owns  beyond  middle  of  street,  759 
Reversion  of  streets  to,  456 
All  rights  of  canal  company  revert  to,  444 
On  railway,  canal,  etc.,  444 
Contribute  to  formation  of  public  ways,  454 
Rights  pertinent  to  property,  759 
Retains  fee-simple  title  and  exclusive  own- 
ership of  soil  in  rights  of  way,  444 
Rights  of,  how  violated,  442 
Rights  of,  not  affected  by  changes  in  street, 

445 

Has  right  to  unobstructed  street,  759 
Action  by,  for  obstruction  of  streets,  441 
Measure    of     damages      for    obstructing 

streets,  762 
Must  make  objections   within  reasonable 

time  when  rights   are  interfered  with, 

763 
Entitled  to  damages  for  diversion  of  street, 

Injured  by  public  improvements,  186 

May  prevent  erection  of  telegraph  lines  in 

street,  814-816 

Causing  injury  by  post  set  on  highway,  717 
Protected  against  appropriation  of  street 

by  railroads,  759 


ABUTTING   OWNER— Continued. 
Action  against  company  erecting  depot  in 

street,  721 

Injuries  from  elevated  roads,  764 
Injured  by  construction  of  street  railway 

781 

May  not  enjoin  use  of  street  by  railway,  786 
Rights  of,  assigned  to  railroad  company, 

759 

Consent  of,  required  to  use  streets,  787 
Consent  to  operation  of  cable  railway,  789 
Consent  to  operation  of  railway  in  street, 

789,  790 

Suffering  special  injury,  762,  763,  781 
Who  sets  out  shade-trees,  319,  717 
ABUTMENTS  : 

(See  also  BRIDGES;   HIGHWAYS;    PIERS ; 

RIPARIAN  OWNERS  ;  STREAMS.) 
Should  not  deflect  stream  against  other 

structures,  137 

ACCEPTANCE: 

Of  dedication,  701-706 

ACCRETION : 

Defined  and  described,  371-377,  424 

Of  laud  by  action  of  water,  371-400 

Accompanies  erosion,  377 

Must  be  slow  and  imperceptible,  371-379 

Value  of,  due  to  proximity  to  stream,  388 

Conditions  necessary  to,  371-379 

Land  is  not,  when,  378 

Land  goes  to  whom,  371-379 

Property  rights  in,  depend  upon  what,  371- 

390 

Becomes  public  property,  when,  379 
To  public  streets  and  ways,  378,  379 
At  foot  or  end  of  street,  379 
To  right  of  way  of  railroad,  379 
Effect  of,  on  boundaries,  377 
Changes  boundary,  372,  423 
Boundary  follows  changes  in  stream  due 

to,  371-420 

Upon  lakes,  ponds,  and  harbors,  381 
To  shore  of  island,  432 
Deposited  on  site  of  island  washed  away,, 

380 

Island  joined  to  mainland  by,  378 
Inside  of  line  belongs  to  whom,  381 
Railroad's  right  to,  382 
Owned  by  riparian  owners,  378 
-Value  of,  388 
Division  of,  depends  on  value,  388 

589 


590 


INDEX. 
References  are  to  sections. 


ACCRETION—  Continued. 
How  divided,  383 

Boundaries  of  land  acquired  by,  383 
Determination  of  lines  bounding,  383 
Title  to,  is  from  state,  381 
Filling  regarded  as,  382 
Lease  of,  includes  what,  378 
Caused  artificially,  382 
Acts  to  increase,  382 
Bights  in,  when  created  artificially,  382 

ACQUIESCENCE  : 

(See  also  AGREEMENT  AND  ACQUIESCENCE  ; 
ADVERSE    POSSESSION  ;    ARBITRATION  ; 
BOUNDARIES;  SURVEYING.) 
Means  of  establishing  boundaries,  368,  491- 

510 

In  boundary  by  mistake,  504 
May  amount  to  a  license,  661-670 

ACREAGE : 

(See  also  AREA;  BOUNDARIES;  CONFLICT  OF 

CALLS;  SURVEYS.) 

Against  courses  and  distances,  588-597 
Given,  includes  bed  and  bank  of  stream, 

when,  411 
Action  for  deficiency  in,  411 

ACT: 

(See  CONGRESS;  LEGISLATURE;  STATUTE.) 

ACT   OP  GOD  : 

Easement  extinguished  by,  648,  649 
ACTION  OF: 

See  TOPIC  OF  ACTION. 
ACTUAL  POSSESSION: 

Defined,  520 

Acts  evidencing,  520 

To  constitute,  mining  must  be  prosecuted, 

how,  527 
Surveying  of  land  and  paying  taxes  is  not, 

Title  to  land  outside  of  line  described  in 
deed  may  be  acquired  by,  526 

ADDITIONAL  BURDEN  : 

(See     also    LAND;    LATERAL     SUPPORT; 

STREET.) 

Lateral  support  required  for,  324 
Telegraph  lines  in  streets  are,  814 
Steam  railroad  on  street  is,  756 

ADJOINING  OWNERS  . 

Bights  of,  against  one  another,  311-350 
In  a  description  of  land,  583-585 
Against  courses  and  distances,  583-585 
Against  points  of  compass,  584 
Land  described  by,  and  excess,  597 
Boundary  located  by  agreement,  467,  495 
Can  demand  a  correct  location  of  boundary 

line,  504 

Adverse  possession  will  fix  fence  as  bound- 
ary, 501 
Cannot  prevent  neighbor  from  building  to 

dividing  line,  314 

May  be  required  to  remove  projections,  336 
In  excavating  must  furnish  artificial  sup- 
port to  neighbor's  land,  323 
Own  what  part  of  party-wall,  338 
To  pay  cost  of  party-wall,  when,  343 
Must  give  notice  of  intention  to  make  ex- 
cavations, 322 

Light  and  air  of,  diminished  by  erection  of 
building,  301 


ADJOINING   OWNERS— Continued. 
Are  joint  owners  of  fence  on  dividing  line 
311 

Becovery  for  overhanging  branches,  317 
Either  may  lop  off  branches  of  line-trees 

314 
To  prevent  damage  may  cut  branches  and 

roots  of  neighbor's  tree,  316 
Liable  for  trespass  for  gathering  overhang- 
ing fruit,  315 

Liable  for  preventing  tee-owner  from  gath- 
ering fruit,  315 
One  may  not  destroy  tree  without  consent 

of  the  other,  313 
Bequired  to  grant  license  to  enter  premises 

to  protect  buildings,  when,  324 
Duties  to  care  for  roof-water,  183 
Bights  to  air,  light,  and  view,  301-310 
Bights  in  underground  waters,  251-280 
Drawing  gas  from  neighbor's  land,  282 

ADJOINING   TRACT: 

Measurement  to,  607 

A  cornering  estate  is,  585 

ADVERSE   POSSESSION: 

(See    also    AGREEMENT    AND    ACQUIES- 
CENCE ;  ADVERSE  USE  ;  COLOR  OF  TITLE  ; 
POSSESSION  ;  PRESCRIPTION.) 
Defined,  32,  514,  516,  521,  533 
Brief  history  of,  513 

And  prescription  distinguished,  672-674 
Consists  of  six  elements,  715 
Character  of  use  necessary  to,  521 
Must  be  actual,  520 
Must  be  open,  notorious,  and  hostile,  514, 

524,  528 

Adverse  and  hostile,  explained,  516, 517, 675 
Must   be  continuous    and  uninterrupted, 

529 

Continuity  of,  not  destroyed,  when,  530 
Must  be  strictly  proved,  517 
Must  be  intention  to  claim  and  hold,  517, 

518 

What  constitutes  notice  of,  528 
Owner  must  have  notice  of,  528 
Ignorance  of  owner,  528 
Ignorance  of  occupant  and  its  effect,  518 
Bights  by,  in  land,  511-540 
What  is  sufficient  inclosure,  522 
Sufficient  evidence  that  one  has  had,  521 
Neglect  and  abandonment  will  work  for- 
feiture of,  530 

Owner  building  over  line  by  mistake,  336 
Determined  by  location  and  character  of 

land,  521,  531 

Of  wild,  uninhabited  lands,  521 
Of  mines,  quarries,  vaults,  subways,  527 
Of  part  of  light  and  air,  307 
By  tenant,  licensee,  purchaser,  trustee,  and 

members  of  owner's  family,  516 
Tenant  for  life  cannot  gain  title  by,  16 
Surrender  and  disclaimer  necessary,  when. 

516 

By  vendor,  516 
Of  several  occupants  may  be  united,  when, 

686,  687 

By  railroad  companies,  536 
By  a  railroad  under  verbal  gift,  526 
Permitted  by  trustee,  516 
Must  be  confined  to  one  spot,  521,  526 
Occupation    must    be    exclusive    of    part 

claimed,  525 


INDEX. 


^References  are  to  sections. 


.ADVERSE   POSSESSION—  Continued. 

Different  periods  of,  of  separate  parcels, 
cannot  be  united,  521 

Owner  acquires  title  by,  when,  502 

Ripened  into  a  title,  cannot  be  waived  by 
agreement,  514 

Benefit  of,  will  go  to  person  having  better 
title,  532 

Required  to  fix  boundary  when  no  agree- 
ment, 502 

Fixes  boundaries,  when,  368,  502 

Land  acquired  and  boundaries  determined 
by,  511 

Interference  of  claims,  532 

Overlapping  claims,  532 

Against  the  public  or  the  state,  534, 682-685 

Under  agreement  and  acquiescence,  501, 
502,  519 

Disabilities  that  prevent,  688 

Tacking  husband's  and  widow's,  687 

Under  color  of  title,  524 
And  good  faith,  533 
Occupant  is  confined  to  land  described, 

526/ 

When  nothing  to  limit  claims  of,  526 
Should  be  registered,  when,  525 
Acquires  title  to  all  that  his  instrument 
of  title  describes,  524 

ADVERSE  USE  : 

(See  also  ADVEESE  POSSESSION  ;  PRESCRIP- 
TION.) 

What  constitutes,  185,  521,  675-682 

Must  be  open,  adverse,  exclusive,  and  un- 
interrupted, 675-682 

Must  be  open,  not  by  stealth,  528 

Interruption  of,  186,  676-680 

Methods  or  means  of  interrupting,  680 

Limits  prescriptive  rights,  681 

Sufficient  to  sustain  prescriptive  right  to 
maintain  nuisance,  212 

Does  not  exist,  when,  185 

Disabilities  that  prevent,  688 

Instances  of,  521 

Of  dam  to  raise  water,  185 

Will  not  confer  exclusive  right  to  use  of 
water,  when,  212 

By  several  occupants,  686,  687 

Connected  by  privity  of  contract,  blood,  or 
estate,  686 

Tacking  corporations  and  individuals,  687 

Against  the  state  or  the  public,  534,  682-685 

AGREEMENT  : 

(See  also  ARBITRATION;  BOUNDARIES; 
DEEDS  ;  GRANTS.) 

Boundaries  established  by,  368 

Landowners  may  establish  boundary  by, 
491-510 

Effect  of  survey  establishing  boundary  may 
be  waived  by,  467 

To  await  an  award  is  a  submission  to  arbi- 
tration, 463 

Of  boundary,  a  submission  to  arbitration, 
470 

Between  riparian  owners  as  to  boundaries, 
378,  491-510 

To  revoke  submission  it  should  be  in  writ- 
ing, when,  468 

Fora  survey  not  followed  by  possession, 

In  regard  to  fixtures,  8 


AGREEMENT—  Continued. 
Between  landowner  and  owner  of  fixtures, 

governed  by,  8 
Cannot    affect  rights  of    land    purchaser, 

when,  8 

Reserving  rights  of  light  and  air,  307 
For  party-wall,  343 

AGREEMENT       AND       ACQUIES- 
CENCE : 

(See  also  ADVERSE  POSSESSION;  ARBITRA- 
TION ;  BOUNDARIES.) 
As  to  boundaries,  491-510 
Proof  of,  must  be  shown,  497 
Parties  to,  are  bound  by,  495-510 
Is  founded  on  mutual  promises  and  con- 
cessions, 495 
Of   boundary  between  parties  is  bindincr 

496-510 

With  knowledge  of  facts  makes  an  estop- 
pel, 499 
No  estoppel  unless  an  agreement  express 

or  implied,  499 

Possession  is  adverse,  when,  519 
Time  of  occupation  required,  501 
Period  of  possession  depends  upon  express 

agreement,  502 

Acquiescence  and  occupation  must  be  for 
full  statutory  period,  if  no  agreement, 
501 

Title  depends  on  force  of  parol  and  on  oc- 
cupation, 498 

AIR: 

(See  also  EASEMENTS  ;  GAS  ;  LIGHT  AND 
.AiR;  SMOKE.) 
Prescriptive  right  to,  326 
Conduits  for,  341-860 

ALLEYS  : 

See  BOUNDARIES;  HIGHWAYS;  STREETS. 

ALLUVION  ; 

(See  also  ACCRETION ;  BANKS;  RELICTION; 

SHORES;  STREAMS.) 
Defined  and  described,  377,  424 
Formed  on  riparian  owner's  lands,  383 
Deposits  against  an  island,  432 
Title  to,  vests  in  whom,  378-383 
"ALONG"  : 
In  a  description,  363,  406,  407 

AMBIGUITY  : 

(See  also  DESCRIPTION.) 
In  a  description,  543,  546,  550,  613 
Patent  and  latent,  542 
Conflict  between  parts  of  a  description,  571- 

610 

Intention  of  parties  will  prevail,  572 
In  case  of,  monuments  control,  573 
Area  helps  to  determine  the  boundary,  589 

AMEND  : 

Right  of  legislature  to  amend  charters,  871 

ANCIENT  DOCUMENTS  : 

(See  also  ?DEEDS  ;  DESCRIPTIONS  ;  MAPS  ; 

PLANS  :  PLATS';  SURVEYS.) 
Defined,  622-624 
Computing  the  age  of,  623 
From  whose  custody  must  they  come,  623 
Ancient  maps  and  deeds,  622-624 
Maps  to  show  boundary  lines,  623 


592 


INDEX. 
References  are  to  sections* 


APPROPRIATION : 

(See  also  PEIOB  APPROPRIATION  ;  IRRIGA- 
TION; STREAM;  WATER.) 
Of  ice  011  navigable  stream,  164 
Of  land  under  false  pretense  by  railroad,  735 
Of  streets  for  railway  by  legislature,  781 
Of  water  ; 

Consists  of  what,  75 

Inception  of  rights,  107 

Time  or  date  of,  how  fixed,  75 

Of  all,  means  what,  75 

Is  not  an  appurtenance,  77 

Of  subterranean  currents,  258 

For  beneficial  use,  62,  75 

By  riparian  owner  determined  by  reason- 
able use,  71,  82 

A  reasonable  use,  when,  60 

Artificially,  267 

By  erection  of  dam,  75 

For  mining  purposes,  75 

For  steam-boilers,  63 

APPROPRIATORS  OF  WATER  : 

(See    also    PRIOR   APPROPRIATION;    WA- 
TERS.) 

Entitled  to  how  much,  75,  110 
Are  tenants  in  common,  77 
How  affected  by  diversion,  105 
Cannot  maintain  an  action  for  the  value  of 

water,  77 
Cannot  change  method  of  conveying  water, 

75 

Have  no  specific  property  in  water,  77 
Injured  by  unlawful  acts  of  another,  220 
Rights  of : 

Begin  with  appropriation,  107          . 

Are  usufructuary,  77 

To  construct  ditches,  73,  77 

To  remove  obstructions,  75,  77 

To  change  point  of  diversion,  75 

To  recapture  and  use  abandoned  water, 
76 

Not  lost  by  conveyance  of  water  above 
mill,  77 

To  ice-fields,  164 

Abandonment  of  right  of  priority,  76 

ARBITRATION  : 

(See  also  AWARD  ;  BOUNDARIES  ;  DESCRIP- 
TIONS ;  SURVEYS.) 
Disputed  boundaries  determined  by,  368, 

461-490 
Effect  of  submission  of  boundary  disputes, 

463 

Submission  to,  may  be  revoked,  468 
Agreement  of  boundary  should  be  made  a 

submission  to,  470 
Ownership  of  land  determined  by,  462 

ARBITRATORS  : 

Should  be  named,  466 

Surveyors  as,  must  act  together,  480 

Must  receive  evidence,  479 

Must  decide  by  their  own  convictions  and 

judgments,  476  • 

Judge  of  questions  ordinarily  within  power 

of  court,  478 
May  consult  others,  477 
Compensation  of,  482 
Disqualified  if  interested,  466 
Should    order    a    conveyance     executed, 

when,  462 
Award  of,  does  not  affect  title,  469 


ARBITRATORS— Continued. 
Powers  of: 

Bestricted,  472 

At  an  end  when  award  is  made,  483 

To  summon  witnesses   and   admi  niste 
oaths,  478 

And  duties  may  not  be  delegated,  476 
AREA: 

(See    also    BOUNDARIES  ;    DESCRIPTION  ; 

MORE  OR  LESS  ;  SURVEYS.) 
Deficiency  in,  of  land,  411 
Should  include  land  under  water,  when,  411 
Of  street  to  be  considered,  411 
Bepresentations  as  to,  590 
What  is  not  a  warranty  as  to,  588-597 
To  be  considered  in  case   of    ambiguity, 

589-597 

None  inclosed  by  description,  546 
Against  courses  and  distances,  588 
Computed  from  distances  and  angles,  588 
Are  a  function  of  distances,  587 

ARID    COUNTRIES 

(See  also  APPROPRIATION  ;    IRRIGATION  ; 

STREAMS  ;  WATERS.) 
Irrigation  in,  71-77 

ARTIFICIAL    POND  : 

(See    also    CANALS  :    DAMS  ;     DITCHES  ; 

LAKES  ;  PONDS  ;  STREAMS.) 
Described  as  a  boundary,  423 
Property  in  ice  on,  166 

ARTIFICIAL    WANTS: 

Of  water  defined,  60 

AUTHORITY  : 

To  grant  use  of  streets,  786 

To  occupy  streets  is  void,  when,  786 

To   occupy   public    street   with    building 

materials,  721 

To  locate  railroad  upon  street,  756,  757 
To  relocate  railroad,  743,  747,  749 
To  operate   railroad   in  street  cannot  be 

implied,  756 

To  select  lands  for  railroad,  750 
To  connect  railroad,  745 
To  extend  railroad,  745 
To  build  road  by  most  direct  route,  745 
To  construct  railroad  along  river,  745 
To  erect  water-works,  142 
To    contract  for  a   supply    of  water    not 

authority  to  erect  water- works,  142 
To  take  certain  waters  and  rights,  275 
To  erect  awning  is  a  license,  718 
Of  Congress  and  Parliament  is  paramount, 

245 

AWARD    OF   ARBITRATORS  : 

(See   also    ARBITRATION  :    BOUNDARIES  ; 

SURVEYORS.) 

On  disputed  boundaries,  461-490 
Is  certain,  when,  485 
Irrevocable  and  binding,  467' 
Proper  form  of,  484 
Must  decide  all  questions,  474 
Must  express  an  actual  decision,  484 
Need  not  be  under  seal,  or  in  writing,  or 

attested  by  witnesses,  464 
Reasons  for  setting  aside,  465,  479 
Avoided  by  surveyor  exceeding  powers,  474 
Mistake  of  facts  may  render  it  void,  472 
Will  establish  boundary  dispute,  467 


INDEX, 
References  are  to  sections. 


593 


AWARD  OF  ARBITRATORS  —Cont'd. 
Providing    that     a     subsequent     survey 

^should  fix  boundaries  held  valid,  485 
Fixing  boundary-line  a  defense  to  an  action 

of  trespass,  462-490 
Affecting  title  to  land,  4G2,  469,  484 

AWNINGS  : 

Erection  of,  in  a  street,  718 

City  may  not  grant  right  to  erect,  718 

AZIMUTHS  : 

(See  also  BEAEINGS  ;  NORTH,  ETC.;  POINTS 

OF  COMPASS;  STJKVEYS.) 
Mistakes  of  recording,  541-570 

BANK: 

(See  also  BEACH  ;  SHOKE  ;  STKEAM.) 
Proper  use  of  word,  374 
Described  as  a  boundary,  373 
"At,"  "by,"  "on,"   "along,"   "with,"   or 

"  by  the  side  of"  the  bank,  363,  406 
Law  determines  ownership,  403 
Care  must  be  exercised  in  protecting,  131 
Owners  of  stranded  property  mav  £O  and 

reclaim  it,  244 
General  use  of,  not  included  in  easement  of 

passage,  244 

Of  navigable  waters  and  their  use,  244 
Public  may  anchor  on  banks  of  navigable 

waters,  244 

BANK,  BEACH    OR  SHORE : 

In  a  description  of  land,  401-414,  423 
BARRIERS  . 

Between  estates,  311 

Built  equally  on  both  sides  of  boundary- 
line,  311 

Sometimes  divided  by  fence-viewers,  311 

To  make  an  enclosure  for  adverse  posses- 
sion, 522 

Liability  for  defective  construction,  87 

Riparian  owner  may  protect  his  land  from 
overflow,  134 

Riparian  owner  must  exercise  care  in  erect- 

BATHING  : 

In  navigable  waters,  237 
Restraint  upon  sea-bathing,  237 
Establishment  may  not  be  conducted  on 

private  property,  237 
Trespassing  for  purpose  of  bathing,  237 
BEACH : 

(See  also  BANK;  SHOKE;  STKEAM.) 
Defined  as  a  boundary,  373 
As  a  boundary,  371-376 
Changes  in,  affect  boundary,  372 
Property  in  state,  375 
Right  to  exclude  public  from,  683 
BEARING  : 

(See  also  COURSES;  MAGNETIC   BEARING- 

NORTH,  ETC.;  SURVEY.) 
Mistakes  in,  in  deeds,  541-570 
Meaning  of  words  used  in  describing,  603, 

True  or  magnetic,  which,  604 
BED  : 

Of  stream  described,  374 
Of  stream  owned  by  whom,  377-379,  401-420 
Of  stream  may  be  changed,  when  113 
Title  to  bed  of  lake,  421,  422 


BED—  Continued. 
Of  great  lake  belongs  to  state,  421 
Owner  of,  owns  alluvion,  378 

BEGINNING  : 

See  STARTING-POINT  ;  SURVEY. 

BENEFICIAL  USE  : 

(See  also  RIPARIAN  OWNER  ;  USE;  WATERS.) 
Of  water  appropriated,  75 
Of  water  of  a  stream,  75 
May  be  made  of  reduced  stream,  84 

BLAZINGS  : 

To  estimate  date  of,  580 
BOTTOM  : 

Of  stream  owned  by  whom,  377-379  401-420 
BOUNDARIES  : 

(See  also  COURSES;  DESCRIPTIONS;  DIS- 
TANCES ;   LAND  ;   MAPS  ;    MONUMENTS  ; 
SURVEYS.) 
In  general,  361-370 

Defined  and  described,  363,  366,  369  372 
Depend  upon  what,  367 
Depend  on  language  of  deed,  446 
Value  of  small  words,  406-408 
May  depend  on  circumstances,  450 
Existing,  will  be  maintained,  390,  574 
Defined  by  reference  to  map  or  plan   598 
Described  in  deed,  367 
How  established,  367 
How  designated,  369 
Defined  by  monuments,  364 
Described  by  artificial  monuments,  370 
Center  of  monument  should  be  402 
How  fenced,  605 

By  adjoiners,  311-350,  503,  504,  607 
Between  riparian  owners,  387 
Private,  compared  with  government,  365 
As  established  by  government,  365 
Government  controls  private,  when,  365, 410 
Of  a  township  ascertained,  378 
Descriptions  by,  sufficient  to  establish,  512 

526 

Importance  of  different  methods  in  describ- 
ing, 575 

Controlling  elements  in,  571-610 
Established  by  acts  of  owners,  368 
Submission  of  disputed,  to  arbitration,  461- 

4:OO 

When  not  binding  on  landowners,  467 
Rule  for  adjustment  of,  383 
Causes  of  litigation  over,  361 
Projections  overhanging,  308-314 
Trees  planted  on,  312-320 
Ownership  of  trees  growing  near,  313 
Running  through  forest,  314-320 
Determination  of  : 

How  determined,  368 

And  proof  of,  611-640 

By  field-notes  as  evidence,  617 

By  traditional  proof,  620 

By  parol  proof,  542 

By  declarations    of    persons    since    de- 
ceased, 620,  625 

By  testimony  of  old  inhabitants,  619-621, 
625-629 

By  hearsay  evidence,  620 

By  third  person,  464 

By  adverse  possession,  511-540 

Established  by  law,  368 

By  state  laws,  401,  412 


594 


INDEX. 
References  are  to  sections. 


BOUND  ARIE  S—  (Ion  tinned. 
Determination  of: 
Vary  in  different  states,  414 
Is  for  jury,  611-613 
Left  to  jury  unbiassed,  612 
Of  starting-point,  630,  631 
By  direct  or  reverse  calls,  632 
When  one  line  is  omitted,  550 
Is  a  mixed  question  of  law  arid  fact,  368 
Effect  of  field  operations  on,  404 
Affected  by  doctrine  of  civil  law,  413 
When  land  was  submerged,  380 
Of  reclaimed  lands,  383 
Shifting  character  of,  371-400 
When  stream  changes,  377-420 
Affected  by  accretion  or  receding  waters, 

383,  423 

Affected  by  sudden  changes,  377,  390 
Changed  by  storm,  372 
Effect  of  landslides  on,  390 
Diversion  by  artificial  means   does  not 

change,  390 

Unaffected  by  change  in  street,  445 
On  waters,  371-400 

Depends  on  navigability  of  waters,  421 
On  beaches  and  shores,  371-376 
On  lakes  and  ponds,  421-430 
Of  land  on  pond,  421,  423 
On  artificial  lakes  and  ponds,  422 
On  artificially  enlarged  lake,  422 
Coincident  with  the  shore  of  a  lake,  407 
Of  islands,  431,  432 
On  streets  and  roads,  441-456 
On  a  stream  : 

Stream  described  as,  377-379,  401-420 
Will  follow  changes,  377-420 
Middle  line  of  streams,  409 
Ending  at  stream,  387 
Connecting  lines  across  or  to  middle  of 

streams,  383,  387-390 
Non-navigable,  407-420,  449 
Of  navigable,  401 

Where  tide  ebbs  and  flows,  374,  376 
Upon  non-tidal  navigable  waters  varies,414 
Meaning  of    certain  phrases   used   with 

ways  and  streams,  406-410,  451 
"At,"  "along,"  "by,"  "on," and  "with" 

a  stream,  406,  447 
Meaning  of  "to  bank,"  "to  beach,"  "to 

shore  "  of  body  of  water,  405-410 
Limited  by  the  bank,  235, 371-376,  401-414 
Mississippi  Kiver  as  a,  409 
On  a  new  channel,  377 
By  agreement  and  acquiescence  : 
Established  by,  461-510 
Time  required  to  establish,  502 
Change  by  agreement  is  valid,  495 
Early  settlements  are,  when,  365,  413 
Settled  by  parol  agreements,  496,  501 
Location  of,  conclusive,  when,  461-510 
Settlement  of,  may  be  refused,  499 
Surveyed,  that  are  settled,  494 
Determined   by  surveyor  not  to  be  de- 
nied, when,  467 

Survey  of,  not  followed  by  possession,  467 
Few  surveyors  informed  of  laws  of,  404 
Agreed  upon  may  control  deeds,  519 
Designated  by  grantor  at  transfer,  493 
By    grantor    will    bind    transferee    and 

grantee,  499 
Parties   must    have    had    knowledge  of 

facts  of  its  situation  and  marking,  499 


BOUNDARIES— Continued. 

By  agreement  and  acquiescence  : 

A  submission  to  arbitration,  when,  470 

Award  will  establish,  467 

Mistake  in  the  location  not  a  binding 
agreement,  493 

Natural,  to » inclose  for  adverse  posses- 
sion, 522 

Mistake  as  to,  does  not  destroy  adverse 
holding,  517,  518 

BRIDGE  : 

A  part  of  highway,  720 

Is  land,  when,  5 

Over  stream  connecting  streets,  784 

May  be  built  over  stream,  when,  112 

An  illegal  structure,  when,  121 

Must  not  interfere  with  flow  of  stream,  117 

Waters  of  stream  set  back,  by,  112 

Contracting  stream  and  causing  overflow, 

Constructed  over  navigable  stream  without 

authority,  240,  242 

Across  navigable  stream,  injured  by  float- 
ing logs,  240,  242 
Which  interferes  with  navigation  not  an 

obstruction,  when,  116 
Causing  permanent  injury,  721 
Obstruction  of  surface-water  by,  115 
Not  used  by  the  public  may  be  a  nuisance, 
702 

BROOK : 

See  STREAM  ;  WATERS. 

BUILDING  : 

(See    also    BOUNDARIES;    EXCAVATIONS; 

LATERAL  SUPPORT  ;  PROJECTIONS.) 
Lateral  support  for,  321-335 
On  adjoining  lot  must  be  protected,  when, 

O.24: 

From  what  point  to  measure,  605-607 
Is  personal  property  of  builder,  when,  6 
Blown  down  is  not  personal  property,  8 
Erected  without  landowner's  consent,  6 
Erected  by  landowner's  license,  8 
License  of  purchaser  to  enter  and  take,  667 
Projecting  upon  adjoining  lands,  336 
Overhanging  neighbor's  land,  308 
Injuries  from,  when  close  to  line  of  street, 

182 

Wall  injured  by  roof-water,  180,  181 
Snow  from  roof  of  into  street,  182 
Must  bo  provided  with  eaves-troughs,  181 
Restrictions  refer  to  street  as  it  existed  at 

the  time  restrictions  were  imposed,  445 
Basement  of,  lighted  from  above  by  floor- 
light,  307 

BULKHEAD : 

To  confine  stream,  382 

BURDEN : 

Additional,  upon  streets,  721,  756,  781,  814, 

841 

Eailroad  on  a  street,  758 
Telegraph  and  telephone  line  on  land,  818 
Street  railway  is  not  additional,  781 
Of  buildings  on  land  which  require  extra 

lateral  support,  324 

BURDEN  OF  PROOF  : 

As  to  monuments  in  a  survey,  579.  611-633 
When  monument  has  been  displaced,  577 


INDEX. 


595 


"References  are  to  sections* 


BUYER : 

(See  also  PURCHASER;  VENDEE.) 
His  license  to  enter  and  take,  667 

BY  THE  BANK,  ETC.: 

In  a  description  of  land,  405-410 

CABLES  : 

Must  not  interfere  with  navigation,  242 

CALLS  IN  A  DEED  : 

(See   also    BOUNDARIES  ;    CONFLICT    OP 

CALLS;  DEED;  DESCRIPTION.) 
In  a  description,  545 
In  a  survey,  rule  as  to,  573-576 
Relative  importance  of,  575 
Incidental  calls  noted,  633 
Direct  and  reverse,  632 
Omitted  calls  supplied,  550-552 
Some  disregarded,  when,  633 
For  section  corners,  631 
For  adjoiners  in  a  deed,  583-585 

CANAL  COMPANY  : 

May  be  a  riparian  owner,  51 

Acquires  only  right  of  way  in  land,  255 

Has  only  a  right  of  way  for  canal  purposes, 

444 

Liable  for  damages  to  mill,  272 
May  sheet-pile   embankment  to  keep  out 

water,  134 

CANALS  : 

Ownership  of,  444 

To  drain  swamps,  184 

Causing  injury  to  mill  by  leakage,  272 

Discharge  of  sewers  into,  205 

CARE: 

Required  in  making  excavations,  331 
Taken  in  making  new  channel,  105 
Must  be  exercised  in  protecting  bank  or 
structures,  131 

CENTER  LINE  : 

(See  also  MIDDLE  LINE  ;  STREAM  ;  STREET.) 
Of  stream  in  a  description,  409,  422 
Of  street  or  way  as  boundary,  441-456 

CERTAINTY : 

Of  location  of  monuments,  544,  545 

CERTIFICATES  : 

Of  copies  of  maps,  etc.,  616-618 

CHAIN : 

See  BOUNDARIES;  MEASUREMENTS;  SUR- 
VEY. 

CHANGE : 

In  location  of  a  boundary,  371-440,  543 

Effect  of,  on  boundaries,  371-400 

In  nature  disturbs  boundaries,  366 

Of  streams  and  shores,  381-440 

In  street  does  not  affect  boundaries,  445 

Parol  evidence  to  change  deed,  542-562 

CHANNEL : 

Is  a  watercourse,  172 

Made  by  break  in  dam  used  by  public,  233 

Excavated  and  deepened,  106 


CHARTERS  : 

(See  also  CORPORATION  ;  FRANCHISE.) 
Of  corporations  and  franchises,  862,  863 
Forfeiture  of,  884 
Legislative  right  to  amend  or  repeal,  870- 

872,  879-883 

Renewal  of,  by  legislature,  879-881 
Granting  lawful  monopolies,  868 
Limitations  a3  to  property  and  contracts, 

871-873    ' 

Of  corporations  lost,  879-885 
Railroad,  rights  acquired  under,  765 
Of    railroad   companies    are    public    fran- 
chises, 731 

Authorize  one  location  of  railroad,  747 
Do  not  authorize  occupation  of  street  by 
railroad,  756 

CHATTELS  : 

Real  and  personal,  denned  and  described,  6 

Are  sometimes  fixtures,  7 

Not  changed  to   fixtures  by  intention  of 

alteration,  8 

A  house  is,  when  sold  and  removed,  6 
A  house  is  not,  when  blown  down,  8 

CHECKS  : 

In  a  survey,  587 

CITY: 

Adverse  use  against,  534 

Adverse  and   prescriptive  rights  against, 

534,  682-685 

Its  boundary  a  railroad  terminal,  753 
Rights  of,  in  Waters  : 

To  appropriate  streams,  211 

To  acquire  right  to  use  stream  by  pre- 
scription, 212 

As  riparian  owner  to  take  water,  143 

To  dispose  of  surplus  water,  when,  143 

To  acquire  all  rights  necessary  to  supply 
water,  142,  143 

To  contract  for  water  to  extinguish  fires, 
148 

To  refuse  water  if  not  of  quality  agreed 
upon,  148 

To  require  stipulated  quantity  of  water 
though  mains  are  small,  148 

To  an  action  to   rescind  contract  with 
water  company,  148 

To  fix  water  rates,  when,  151 

To  purchase  quasi-public  works,  848 

To  construct  water-works,  when,  142 

To  purchase  franchise  of  water  company,, 
when,  142 

To  grant   franchise  to  water  company,, 
when,  142 

To  take  prescriptive  right  of  landowners, 
to  pollute  water,  when,  212 

To  control  surface-waters,  186, 187 

To  drain  water  from  property,  184 

To  locate  drains,  188 

To  neglect  culvert  that  discharges  sur- 
face-waters, 119 

To  protect  itself  by  building  levees,  136 

To  construct  conduit  lower  than   sur- 
roundings, 275 

To  control  sewage  disposal,  220 

To  abandon  a  sewer,  186 

To  discharge  sewage  into  river,  205,  219 

To  prevent  pollution  of  water-supply,  220 

To  what  accretions,  379 


596 


INDEX. 


References  are  to  sections. 


CITY — Con  tinned. 
Rights  of,  in  Waters  : 

Land  made  by  filling,  381 
Rights  of,  in  streets  : 

To  control  streets,  756,  786 

To    lateral  support  for  its  streets  and 
structures,  333,  321-335 

To  make  or  improve  streets  as  an  agent 
of  the  state,  721 

To  take  land  for  streets,  703 

To  authorize  removal  of  soil  from  streets, 
442 

To  excavate  road  below  grade,  442 

To  change  grade  of  streets  without  mak- 
ing compensation,  761 

To  fill  up  and  grade  streets,  187 

To  pave  streets  and  prevent  absorption  of 
rain,  186 

To  remove  trees  if  title  to  street  is  in 
city,  319 

To  grant  telephone  company  license  to 
clip  branches  of  trees,  319 

To  erect  awning  in  street,  718 

To  grant  license  to  occupy  streets,  664, 
844-848 

To  grant  right  of  way,  786 

To  grant  use  of  streets  if  it  has  title,  442 

To  grant  exclusive  privileges  in  streets,792 

To  grant  street  for  private  purposes,  442, 
718,  721 

To  permit  occupation  of  streets,  787-790 

To  make  its  consent  to  use  streets  condi- 
tional, 788 

To  exact  requirements  of  street  railway, 

To  authorize  operation  of  steam  railroad 

in  street,  756 
To  forbid  change   of   motive   power  by 

street  railway,  799 
To  interfere  with  construction  of  railway, 

791 
To  regulate  telephone  construction,  816, 

817 
To  assent  to  location  of  electric-light  pole, 

To  acquire  rights  in  street  by  dedication, 

707 

Is  required  : 

To  exercise  care  in  selecting  a  plan,  188 
To  guard  against  extraordinary  rainfall, 

90 

To  keep  streets  safe,  145 
To  exercise  proper  care  in  building  an 

improvement,  120 
To  exercise    discretion  in   constructing 

sewer,  186 
To  keep  a  channel  used  for  a  sewer  open, 

212 

Liability  of: 
For  acts  of  officials,  441 
For  trespass  of  its  officers,  352 
For  wrongful  acts  of  railroad  company, 

757 
For  injuries  from  street  improvements, 

186 
For  performing  public  work  unskilfully, 

190 
For  settlement  of  structure  by  reason  of 

a  sewer,  334 
For  excavating  river-bottom  and  loss  of 

lateral  support,  334 


CITY—  Continued. 
Liability  of : 

For  defective  water-pipes,  145 

For  damages  by  maintaining  sewer,  255 

For  defective  sewers,  215 

For  renuering  waters  unfit  for  farm  use, 

211 

For  fouling  of  stream,  215 
For  damages  to  a  well  by  erection  of 

gas-reservoir,  221 
For  damages  to  well,  when,  255 
For  draining  percolations,  when,  255 
For    constructing    water-gallery    which 

drains  river,  272 
For  destruction  of  a  spring  from  sewer, 

For  defective  drainage  plans,  188 

For  injury  from  defective  drain,  189 

For  neglecting  to  drain  street,  186 

For  injuries  from  hydrant,  145 

For  injury  from  water  escaping,  145 

For  submersion  of  laud,  54 

For  diverting  waters,  54 

When  riparian  owner,  for  excess  of  water 

taken, 143 
For  obstructing  street,  721 

CLOSING    LINE  : 

In  a  survey,  547,  633 

COLOR   OF   TITLE: 

(See  also  ADVEKSE  POSSESSION.  ) 

What  may  constitute,  518,  526,  533 

Deed  must  define  land,  526 

A  void  deed  will  not  constitute  it,  526 

A  bad  title  will  answer  for,  526 

Adverse  possession  under,  524 

Occupant  is  confined  to  boundary-line  de- 
scribed, 526 

Good  faith  necessary  to  acquire  land 
under,  533 

In  tacking  adverse  possessions,  686,  687 

COMMERCE  : 

"  More  or  less  "  in,  596 

COMMON  : 

Defined,  29 

COMMON   LAW: 

Rights  under,  to  improve  land,  177 
Compared  with    civil  law    as    applied  to 

surface-waters,  176 
Irrigation  under,  71 

COMPANIES  : 

(See  also  CHARTER  ;  CORPORATION  ;  FRAN- 
CHISE.) 

Telegraph  and  telephone,  811-840 
Not  trespassers  when  authorized  by  state 

to  build  public  improvements,  353 
Erecting  bridge  may  divert  watercourse, 

when,  113 
May    change    watercourse    to    carry   off 

water,  113 

COMPRESSED    AIR  : 

Conduits  for,  281-290,  841-860,  877 

CONDEMNATION  : 

(See  also  LAND  ;  EIGHT  OF  WAY.) 
Of  right  of  way  for  telegraph  lines,  825 
Of  land  for  railroad  right  of  way,  731 


INDEX. 
References  are  to  sections. 


597 


CONDITIONS  : 

Eights  of  way  on,  735 

That  eity  may  impose  on  railroad,  788 

Imposed  upon    street-railway  companies. 

787,  788 
Imposed  upon  telegraph  companies,  823 

CONDUCTION  : 

Disturbance  and  damage  from  electricity, 
830 

CONDUITS  : 

(See  also  GAS-PIPES;   PIPE-LINES;  SUB- 
WAYS ;  WATER-PIPES.) 
Eights  of  way  in,  841-860 

CONFLICT  : 

Of  calls  in  a  description,  571-610 

Parts  of  a  description  in,  545 

Between  parts  ot  deed,  550 

Between  monuments  located  and  those 
described,  599 

Between  general  and  particular  descrip- 
tion, 548,  549 

Between  field-notes  and  map,  600 

CONGRESS  : 

Franchises  b'y,  873 

May  remove  obstructions  to  navigation,  242 

CONNECTION  : 

Of  monuments  on  shore,  with  boundaries 
described,  383,  387-390 

CONSENT : 

Implied,  revoked,  or  modified,  789 

Of  abutting  owners  to  operation  of  railway 

in  street,  789,  790 

Of  abutting  owners  may  be  revoked,  788 
Obtained  before  road  is  built,  790 
Of  local  authorities  to  occupy  street,  846 
Of  city  to  occupation  of  street  by  railway, 

787-790 
Of  city  *to  use  streets  may  be  conditional, 

788 

CONSTRUCTION : 

Not   regarded    by  lawyers   and  business 

men,  1 

Of  public  works  a  ministerial  act,  190 
Of  street  railways,  793 
Of  tunnel,  draining  land,  255 
Should  not  be  begun  until  right  of  way  is 

secured,  1 

Incorporeal  rights  met  in,  641 
Of  a  description  of  land,  405-410 
Of  deed  is  to  determine  intention,  405,  542 

CONSTRUCTION  WORKS  : 

Importance  of  license,  661 
Importance  of  prescription  in,  671 

CONTAMINATION : 

See  FOULING  ;  POLLUTION. 

CONTIGUOUS  : 

Means  adjoining,  585 

CONTINUOUS  : 

Adverse  possession  must  be,  529 
In  prescription,  675-682,  686,  687 


CONTRACT : 

License  by,  for  a  consideration,  663 
Obligation  of,  in  franchises,  868,  871 
When  is  a  corporate  franchise,  a,  863-887 
Limitations  of  corporations  as  to,  873 
Legislature  cannot  impair  obligation  of,  765 
For  monopoly  to  telegraph  company,  819 
As  to  party  walls,  343 
Providing  that  abutting  owners  keep  a  road 

private,  711 

To  supply  city  with  water,  54,  148 
For  water  to  extinguish  fires,  148 
Water  company's,  construed  in  favor  of 

public,  147 
For  artesian-well  water    not  satisfied  by 

other  water,  148 

COPIES : 

Of  maps  and  records  as  evidence,  615-618 

CONVEYANCE : 

(See  also  DEED;  DESCKIPTION;  GRANTOR 

and  GRANTEE.) 
Statutory,  701 

Operative  words  in  a  deed,  46 
To  a  corporation  and  to  a  trustee,  14 
To  a  foreign  corporation  is  voidable,  36 
Construction    of,    not   affected    by  words 

"upon,  by,  or  along  "  the  highway,  449 
Of  interest  in  land  requires  a  deed,  43 
Of  lauds  conveys  grantor's  title,  406 
Of  lands  under  tide- waters,  376 
Of  land  by  metes  and  bounds,  421 
Of  land  not  located  gives  an  undivided  in- 
terest, 559 
Not  void  if  parties  erected  monuments  at 

time  of  transfer,  499 
Of  land  bounded  by  a  road,  445,  446 
Bounded  on  highway  or  stream  carries  fee 

to  center  thereof,  447 
Boundary  restricted  to  bank,  423 
By  reference  to  another  deed  or  map,  555 
Of  sawmill  and  appurtenances,  77 
Of  mines  and  minerals,  283 
Of  gas  and  oil,  283 
Made   to    husband    and    wife,  and    third 

party,  25 

Of  land  for  firm  purposes,  35 
Dower,  c\irtesy,  and  homestead  interests 

must  be  considered,  17 
Not  necessary  to    establish    easement  of 

irrigating  ditch,  77 

COPARCENARY : 

See  ESTATE-IN-COPARCENARY. 

CORNERS  : 

(See     also     AD  JOINERS  ;     BOUNDARIES  ; 

MONUMENTS.) 
Is  adjoining,  585 
Of  tracts,  how  established,  631 
True  corner  \&  where  government  surveyor 

established  it,  579 
Half-section  lines  need  not  be  equidistant, 

580 

CORPORATION  : 

(See  also  FRANCHISE.) 
Bights  of,  limited,  862 
Franchises  of,  861-887 
Public  character,  862 
Exclusive  franchise  of,  how  violated,  147 
Capital  invested  in  franchises,  871 


598 


INDEX. 
References  are  to  sections. 


CORPORATION—  Continued. 
Taxation  of  its  franchises,  865,  886 
Sale  or  mortgage  of  its  franchise,  874-878 
Extinguishment  of  franchise,  879-885 
Making  lawful  use  of  public  franchise,  830 
Dissolution  of,  879-885 
Effect  of  dissolution,  885 
Win  ding-up  of,  879-885 
Insolvent  wound  up,  884 
Laws  as  to  insolvent,  873 
Held  subject  to  what  laws,  870 
Statutes  affecting  remedies  of,  870 
Quasi-public,  what  are,  149,  861-863 
Quasi,  and  valuable  franchises,  871 
Remedies  against,  to  enforce  public  duties, 

878 

Subject  to  police  power,  862,  871,  887 
Fixing  of  rates,  tolls,  etc.,  862 
Owning  pipe-lines  and  other  subways,  841- 

860 

Its  interest  in  realty,  36 
To  acquire  and  dispose  of  real  estate,  36 
Its  seal  should  be  attached  by  officer  hav- 
ing charge  of  it,  45 
To  take  property  by  devise,  36 
Religious,  to  hold  real  estate,  36 
To  interfere  with  natural  action  of  water, 

178 

Pumping  water  from  their  land  to  sell,  254 
,  May  make  valid  dedication,  704 
Litigation  between,  over  electrical  disturb- 
ances, 295 
May  be  a  tenant  in  common  with  a  person, 

36' 

May  exercise  its  general  powers  in  any  state, 
when,  36 

CORPOREAL  PROPERTY : 

Includes  what,  29 

CORRECTION  : 

Errors  not  subject  to,  574 

COUNTY : 

Omitted  in  describing  land,  546 
Liable  for  trespass  of  its  officers,  352 

COURSES  : 

Calls  for,  against  distance,  586-589 
Specific,  control  generally,  549 
Errors  in,  due  to  what,  571 
Controlled  by  monuments,  576-588 
Against  adjoiners,  583-585 
Against  area- or  acreage,  588-597 
"  More  or  less  "  when  land  is  described  by, 
593 

COURTS : 

State  and  Federal,  137 

May  enjoin  revocation  of  license,  663 

Should  leave  boundary  to  jury,  when,  611, 

612 
Order  to  allow  surveyor  to  make  survey, 

352,  353 

COVERTURE : 

See  MARRIED  WOMAN. 

CREEK : 

See  SPUING;  STKEAM  ;  WATERS. 

CROWN  : 

In  England  owns  shores  and  beaches,  376 
Retains  control  of  navigable  waters,  375-390 


CULVERTS  : 

In  railroad  embankments,  119,  120 
Provided  by  railroad  company  for  drainage,. 

191 

Not  erected  in  embankment,  192 
Must  carry  off  extraordinary  flood  waters, 

117 
Building  of,  shows  acceptance  of  highway, 

717 

CURRENTS  : 

Cause  streams  to  change,  377 
Landowner  may  not  throw,  upon  opposite 
shore,  382 

CUSTODY  : 

Of  ancient  document,  623 

CURTESY  : 

Defined,  17 

Requisites  which  must  exist,  17 

CUSTOM  : 

Of  surveyors  in  making  measurements,  605- 
607 

DAM: 

(See  also  DETENTION  OF  WATEKS  ;  MILLS  ; 
OBSTKUCTION  or  STREAMS  ;  OWNER  OF 
DAM;  STREAMS;  WATERS.) 
Detention  of  waters  by,  83-100 
Backing  up  of  water,  85 
Rights  acquired  by  prescription  limited  to 

user,  681 

Erection  of,  may  be  authorized  by  legisla- 
ture, 143 

Built  under  a  mere  license,  662 
Maintenance  and  repair,  88 
Liability  for  defective  construction,  87 
Must  resist  extraordinary  floods,  87 
If  it  breaks,  the  owner  may  have  a  reason- 
able time  in  which  to  repair  it,  243 
Liabilities  for  injuries  to,  89 
Obstructing  new  channel  by,  133 
To  protect  land  should  not  obstruct  stream. 

132 
Choked  with  ice,  proprietor  liable,  88 

DAMAGES  : 

(See  also  MEASURE  or  DAMAGES.) 
Question  of,  usually  left  to  jury,  223 
Witness's  opinion  as  to  amount  of,  223 
For  disturbing   lateral  support,    confined 

to  lot,  330 

From  conduction  of  electricity,  830 
Caused  by  electricity,  when,  292 
From  percolating  gas,  849 
Caused  by  failure  of  a  brook,  275 
Caused     by    city    lowering    underground 

waters,  255 
Caused  by  unlawful  discharge  of  waters, 

178 

From  overflow  caused  by  obstructions,  119 
To  land  from  water  of  reservoir,  272 
May  be  had  for  pollution  of  waters,  201, 

209,  211,  223 
Need  not  be  suffered  to  prevent  fouling  of 

stream,  219 
From  city  rendering  waters  unfit  for  use 

on  farm,  211 

Caused  by  maintenance  of  sewer,  255 
Recovery  by  ferryman    for    discharge    of 

sewer,  208 


INDEX. 
References  are  to  sections. 


599 


DAMAGE  S — Con  tinned. 
Not  recovered  when  surface-water  floods 

house-lots,  186 
When  land,  overflowed  and  made  muddy, 

injures  stock,  195 

From  illegal  structure  obstructing    navi- 
gation, 121 

Recovered  for  injuries  to  water  rights,  204 
For  telegraph  lines  over  land,  817 
Measure  of,  due  to  subways,  850 
For  steam  railroad  in  street,  756 
For  injuries  from  elevated  roads,  764 
For  overhanging  structure,  336 
For  projecting  eaves,  181 
Awarded  owner  for  injury  to  khis  land  by 

projections,  308 
To  recover  for  trees  cut,  320 
Caused  by  overhanging  branches,  316 
For  injury  to  abutting  estates,  761 
Special,  to  property  may  be  recovered  by 

owner,  721 

Against  licensee  for  maintaining  a  dam,  662 
Recovered  by  one  maliciously  injured,  193 
Landlord  cannot  recover  for  tenant's  in- 
juries, 190 

Assessed,  must  be  reasonable,  195 
Which  may  compensate  riparian  owner  for 

injuries  cannot  be  foreseen,  219 
Not  suffered  from  one  cause,  267 

DECEASED  PERSONS : 

Declarations  of,  as  to  boundaries,  620,  625 

DECISION : 

(See  also  AWARD.) 
Of  arbitrator  is  conclusive,  464 

DECLARATIONS  : 

Person  making,  must  have  knowledge,  620, 

626 

Of  persons  since  deceased,  620,  625 
Of  disinterested  persons,  620,  629 

DEDICATION: 

(See    also  BOUNDAEIES;  PARKS;  PUBLIC 

STREETS;  WAYS.) 
Of  rights  in  land,  701-710 
Engineer  should  be  familiar  with  principles 

of,  703 

Defined,  701-703 
Origin  and  character,  701 
Limits  and  qualifications  of,  708 
Effect  of,  705 
By  common  law,  704 
Purposes  of,  702 
Rules  of  law  applying  to,  702 
Application  of  the  doctrine  of,  702 
Must  be  accepted,  701,  706 
May  be  complete  without  acceptance,  when, 

706 

Instances  of,  709 
Of  a  highway  is  complete,  when,  441,  702, 

705 
Of  land  for  highway  subject  to  what  right, 

708 
Of  land  along  a  stream  for  a  highway,  53, 

705 

Of  government  lands,  703 
Of  land  for  a  particular  use,  705 
Of  land  for  school  purposes,  707 
Railroad  right  of    way  acquired  by,  685, 

701-710,738 
Of  piece  of  land  for  private  alley,  705 


DEDICATION—  Continued. 
Property  used    for  other    purposes    than 

intended,  708 
Intention  is  a  vital  element  of,  454,  701,  703, 

709 

To  determine  whether  there  has  been,  703 
May  be  inferred  from  long  use  by  public,, 

70o 

Not  established  by  permissive  user,  709 
Presumption  of,  cannot  exist,  when,  703 
May  be  made  and  proved  by  parol,  703 
In  making,   no  particular  form  is  neces- 
sary, 703 
Parties  to,  704 

Power  to,  given  to  an  agent,  704 
Of  trust  lands  may  be  made  by  trustee,  704 
Cannot  be  made  during  tenancy  without 

consent  of  tenant,  704 
Made  in  strict  compliance  with  the  statute,. 

Will  preclude  appropriator  from  reassert- 
ing his  right  over  land,  705 

Title  to  land  does  not  pass  from  dedicator 
703 

Not  revoked,  when,  705 

Revoked  by  death  of  dedicator,  705 

May  not  be  revoked  by  former  owners 
when,  705 

Rights  to  accretion  lost  by,  379 

DEED: 

(See  also  DESCRIPTION.)     . 
Necessary  elements  of,  41 
Its  execution,  45 
May  be  executed  by  an  agent  having  power 

of  attorney,  45 

Takes  effect  upon  delivery  to  grantee,  45 
Must  be  written  on  paper  or  parchment,  45 
To  a  corporation  must  contain  the  word 

"successors,"  42 
Seal  necessary  to  its  validity,  45 
What  is  necessary  to  have  recorded,  45 
States  have  registration  laws  for  recording 

of,  45 

Operative  words  of  conveyance,  46 
Void  for   uncertainty,  when,  544,  546,  547, 

558 
Made  invalid  by  omission  of  certain  words. 

42 

Avoided  for  duress  of  grantor,  48 
Must  be  accepted  by  grantee,  45 
Alien  may  be  the  grantee,  42 
Description  in,  should  contain  what,  362 
Construction  of  the   description,  405-410, 

541 

Insufficient,  description  in,  546 
Surplusage  in  description,  547 
County  or  township  omitted  from  descrip- 
tion, 546 
Containing  no  description  of  land  is  not 

color  of  title,  526 
Description  saved  by  reference  to  map 

454,  555 

Maps  and  plans  a  part  of,  613 
Construed  with  reference  to  date,  545 
Computing  age  of  an  ancient,  623 
Incorporeal  interests  conveyed  by,  43 
Interest  conveyed  must  be  sufficiently  de- 
scribed, 43 

Thing  to  be  conveyed,  43 
Grants  an  easement  of  light  and  air,  when. 
307.  714 


6oo 


INDEX. 


References  are  to  sections. 


DEED— Continued. 
Conveying  right  of  way  for  ditch,  77 
Conveying  railroad  right  of  way,  732 
To  change  location  of  right  of  way,  716 
Granting  right  to  draw  water  from  dam,  88 
Land  formerly  fronting  on  river  conveyed 

by  passes  accretion,  378 
Gives  an  undivided  interest  when  land  is 

not  located,  559 

Of  land  on  lakes  and  ponds,  421-430 
Passes  title  to  land  under  water,  when,  423 
Eeservations  in  deeds  of  streets,  441 
Reference  to  a  street  is  not  a  dedication,  709 
Parol  proof  of,  542 
Of  a  married  woman,  42 
May  be  ratified  by  infant  after  attaining 

legal  age,  42 

Of  an  habitual  drunkard,  42 
Of  a  person  of  unsound  mind,  42 
Parts  of,  inconsistent,  550 
Conflict  between  parts  of,  571-610 
Intention  of  parties  will  prevail,  557 
Construction  of,  is  a  question  of  intention, 

405 

Of  conveyance  should  be  ordered  by  arbi- 
trators, 462,  484 

DEFICIENCY  : 

Of  acreage  in  a  deed,  591 
How  made  up,  597 
To  be  considered,  when,  588-597 
Allowable  in  a  deed,  592 

DEFLECTION  : 

Of  stream  against  bank,  137 

DELEGATION  : 

Of  acts,  custom  may  authorize,  477 

DERELICTION : 

See  RELICTION. 

DESCRIPTION : 

(See  also  BOUNDAKY  ;  DEED  ;  LAND  ;  SUK- 
VEY;  and  object  described.) 

Conveys  only  what  is  described,  546 

Should  contain  what,  19,  362,  366 

Found  in  deed,  362 

Best  methods^  543 

Importance  of  phraseology,  363,  406-408 

Interpretation  of,  in  deeds  and  convey- 
ances, 541 

Interpreted  in  light  of  circumstances  at  its 
date,  578 

Duty  of  surveyor  to  interpret,  404 

Construction  of,  541-570 

Sufficiency  of,  543-562 

Sufficient  if  land  can  be  identified,  512,  550 

The  intention  prevails,  557 

When  invalid  as  a  conveyance,  367 

Must  be  sufficient  to  effect  a  conveyance,  43 

If  accurate  will  limit  conveyance,  548 

Sufficient  as  a  conveyance  should  answer 
in  an  award,  485,  543-562 

Imperfect,  550 

Void  for  uncertainty,  544 

Insufficient,  imperfect,  and  ambiguous, 
543-547 

When  of  little  use,  367 

Failed  to  include  any  land,  546,  559 

Location  not  designated  by,  559 

Instances  of  insufficient,  546 


DESCRIPTION—  Continued. 
Senseless  and  unmeaning,  547 
Some  ridiculous  ones  given,  543 
County  or  town  omitted,  546,  551 
Applies  to  two  estates,  553 
Grantee  or  devisee  uncertain,  556 
Applies  equally  well  to  two  grantees,  556 
Surplusage  in,  547 
False  part  rejected;  545 
Incidental  calls  ignored,  633 
All  calls  retained  if  possible,  545 
Parts  omitted  may  be  supplied,  when,  551 
Effect  of  omission  in,  550 
A  tract,  excepting  ten  acres    not    desig- 
nated, 559 
Meaning  and  intending  to    convey  lands 

conveyed  to  me  by ,  555 

Of  land  as  what  belongs  to  grantor,  552-555 

"  Land  willed  to  me,"  555 

"  Of  all  my  right,  title,"  etc.,  555 

Of  land  by  familiar  name,  554 

Land  described  as  part  of  a  whole,  554a 

Land  as  "south  one-fourth"  or  as  "north 

ten  acres,"  554a 
Signs,  symbols,  and  abbreviations  in,  560, 

561 

True  or  magnetic  bearings,  604 
Meaning  of  northerly,  etc.,  in,  603,  604 
Poor  spelling  and  grammar,  562 
Omitted  from  deed,  546 
Maps  or  plans  referred  to  in,  454 
Insufficient,  cured  by  reference  to  map  or 

deed,  555,'613-618 

Complete,  and  reference  to  map,  614 
By  reference  to  old  deed,  363,  548 
Mistake  in  lot  numbers,  552 
By  reference  to  field-notes,  410 
Construed  with  reference  to  the  date  of, 

545 

Effect  of  correcting  defective,  363 
Relative  importance  of  calls  in,  575 
Conflict  of  calls  in,  571-610 
Interference  of  two,  532 
What  is  most  certain  will  control,  545,  556, 

571-576 
That  part  holds  which  is  least  affected  by 

mistakes,  571-583 
Conflicting' parts  reconciled,  545 
Correct  prevails  over  incorrect,  545 
Particular  governs  general,  548,  549 
Monuments  against  courses  and  distances, 

571-589 

Monuments  control  all  other  calls,  571-589 
Adjoiners  vs.  courses  and  distances,  583 
By  adjoiners  and  excess,  597 
Area  against  courses  and  distances,  588 
More  or  less  in  a,  588-597 
Meaning  of  "  more  or  less,"  591-597 
Certain  number  of  acres  of  a  tract,  559 
Closing  of  a  survey  in,  633 
Of  land  by  a  railroad,  544 
By  water-mark,  376 

Touching  water  of  navigable  streams,  401 
"At,"  "along,"  "by,"  "on,"  and  "with" 

a,  stream,  406 
As    "to,"    "with,"    "along,"    "up,"    or 

"  down  "  a  stream,  406 
Carrying  grant  to  water  of  stream,  includes 

half  of  bed,  when,  406 
"  By  the  bank,"  beach,  or  shore,  405-410 
"To  the  "or  "along  the  top  of  a  bank," 

etc.,  405-410 


INDEX. 


60 1 


References  are  to  sections. 


DESCRIPTION—  Continued. 
Starting  "at  intersection  of  stream  with 

shore-line,"  etc.,  407 
"Shore,"  "bank,"  and  "water's  edge  "in, 

Failure  to  mention  lake  as  boundary,  421 

"To  a  street"  or  "to  the  side"  and 
"along  the  street,"  449,  451 

"  On,"  "  along,"  "  by,"  "  street,"  with  "  up," 
"  down,"  "  lying  on"  or  "  along  a  street," 
in  a,  448 

Excludes  street,  when,  451 

Call  for  corner  of  two  intersecting  streets, 
449 

Mistake  in,  does  not  prevent  adverse  pos- 
session, 517,  518 

Extending  boundary-line  of  land,  406 

Most  favorable  to  grantee,  adopted  when, 
571 

Oldest  grant  prevails,  602 

Essential  part  of  grant,  367 

Elements  of  error  in,  571 

Mistakes  in,  corrected,  how,  633 

Parol  proof  of,  550 

Evidence  to  explain,  550 

Hearsay  evidence  to  apply,  620 

Judicial  notice  in,  551 

Of  premises  in  a  lease,  19 

DETENTION  OF   WATER: 

(See  also  DAMS  ;  WATEES.) 
Of  streams,  81-100 

DISCHARGE  : 

Of  waters,  opening  for,  117 
Of  water  in  natural  condition,  185 
Of  water    muddy  by  engineering   opera- 
tions, 207 

Of  waters  upon  private  lands,  190 
Of  roof-waters  into  street,  182 
Of  city  sewage  into  a  river,  207 
From      sewage-purification     works     into 

waters,  210 

Of  factory  refuse  into  stream,  208 
Of  tar,  etc.,  from  gas-works,  221 

DIRECTION : 

More  important  than  distance,  when,  586- 
589 

DISABILITIES  : 

That  prevent  adverse  user  and  possession, 

Coverture,  idiocy,  insanity,  war,  etc.,  688 
Law  when  there  are  several,  688 

DISSOLUTION  : 

Of  corporation,  879-885 

DISTANCES : 

(See  also  MEASUKEMENTS  ;  SURVEY.) 
Governed  by  courses,  586-589 
Determine  the  area,  587 
To  what  part  of  a  road  or  way,  606 
To  a  building,  605 

DISTURBANCE  : 

.  (See  AIR;   ELECTRICITY;  LIGHT;  NOISE; 
WATERS.) 

DITCH : 

(See  also  IRRIGATION;    POND;    STREAM; 

WATERS.) 

May  be  a  watercourse,  172 a 
Diverting  water  by,  102,  172a 


DITCH—  Continued. 
Constructed  across  public  highway,  717 
Purchaser  must  repair,  88 
To  drain  lake  in  times  of  high  water,  103 
Capacity  of,  75 
Dug  under  a  license,  661-670 
Owner  liable  for  damage  caused  by  seep- 
age, 274 

DIVERSION  OP  WATERS  : 

(See  also  DAMS;  DETENTION  OF  WATERS; 

MILLS;  PONDS;  STREAMS;  WATERS.) 
Mode  of,  109 
Point  of,  how  fixed,  75 
Riparian  rights  not  affected  by,  108 
Affecting  proprietors  favorably,  105 
Will  be  allowed,  when,  143 
To  supply  riparian  owner's  wants,  110 
Must  not  lessen  supply  to  others,  102, 105, 

Cannot  be  enjoined,  when,  108 

By  riparian  owner  to  injury  of  others,  132 

Restrained  when  wrongful,  104 

Wrongful,  by  company,  108 

Unauthorized,  a  nuisance,  101 

Not  excused  because  sufficient  water  re- 
mains, 104 

Need  not  cause  actual  injury,  104 

Riparian  owner  not  responsible  for  diver- 
sion by  tenants,  52 

For  irrigation,  101 

For  use  of  steam-engines,  101 

Railroad  company  reducing  volume  of 
stream,  102 

Into  new  channel,  105,  115 

By  state,  178 

Caused  by  bulkhead,  109 

To  lessen  cost  of  structures,  113,  114 

By  use  of  land  for  public  purposes,  255 

Of  underground  currents,  275 

Of  underground  waters-due  to  some  motive, 

Of  percolating  waters,  110,  254 

By  water  company  by  pumping  from  well, 
254 

Of  surface-water,  176,  191 

Of  sources  of  springs  and  wells  -254 

Of  rivulet.  257 

Of  water  for  drainage  not  an  appropriation, 
75 

Burden  of  proof  is  upon  person  who  al- 
leges it,  275 

Measure  of  damages  for,  111 

Measure  of  damages  for  diversion  of  sur- 
face-Water, 194 

DIVIDING  LINES  : 

See  BOUNDARIES:  FENCES;  MONUMENTS; 
TREES;  WALLS. 

DIVISION  : 

Of  reclaimed  lands,  383-390 

DOCK-LINE  : 

See  HARBOR-LINE. 
DOCUMENTS  : 

See  ANCIENT  DOCUMENTS  ;  DEEDS  ;  FIELD 
NOTES  ;  MAP;  PLAN  ;  PLAT. 

DOG: 

Trespass  of,  keeper  or  owner  liable,  353 
DOMESTIC  USE  : 
Of  water  of  a  stream,  60 


602 


INDEX. 


References  are  to  sections. 


DOMINANT  : 

(See  also  EASEMENTS  ;  ESTATES.) 
Of  an  easement,  643 

DONEE : 

Tacking  possession  of,  to  donor,  687 

DOWER  : 

Defined,  17 

Attaches  to  hereditaments  relating  to  realty, 

17 

Not  in  shares  of  stock  of  corporations,  17 
Holding  by,  not  adverse  possession,  516 

DRAIN  : 

Constructed  under  license,  661-670 

Prescriptive  rights  in,  671-700 

•  Authority  of  city  to  locate,  188 

Enlarged  at  joint  expense,  719 

Must  carry  away  waters  of  extraordinary 
floods,  117 

Made  by  landowner  for  agricultural  pur- 
poses, 178 

DRAINAGE  : 

Of  surface-waters,  178 

Natural  streams  must  receive  natural  drain- 
age, 184,  205 
Biparian  owner's  right   to   advantages  of, 

184 

Obstruction  of,  an  actionable  wrong,  191 
Prescriptive  rights  to,  of    surface-waters, 

185 

Of  street  destroyed  by  change  of  grade,  186 
City  liable  for  defective  plans,  when,  188 
Of  adjoining  lands   provided    by  railroad 

company,  191 
Of  ponds,  stagnant  bodies,  etc.,  179 

DUTIES  : 

Of  surveyor  in  field-work,  404 
Of  surveyor  at  certain  times,  512 
Surveyor  should  look  to  submission  to  ar- 
bitration, 471 

Of  adjoining  owners  as  to  roof-waters,  183 
Of  riparian  owner  to  avoid  injury  toothers, 

Of  local  authorities  in  cities,  787 
Of  street  railway  company,  793 

EASEMENTS  : 

(See  also  BIGHTS  or  WAY.) 
Defined  and  described,  29,  641-660 
Appurtenant  and  in  gross,  641 
Essential  qualities  of,  641 
Are  incorporeal  hereditaments,  29 
Who  may  enjoy,  646 
How  acquired  or  created,  642 
Acquired  by  adverse  user,  671-700 
Acquired  by  prescription,  when    183    185 

212,  262,  325,  500-503,  661-670,  671-700, 711- 

Maintenance  of,  647 

How  lost  or  extinguished,  643-660 

Lost  by  non-user,  650,  651 

Extinguished  by  merger,  645 

Extinguished  by  act  of  God,  648,  649 

Destroyed  and  restored,  647,  648 

Abandonment  of,  642-650 

Extent  and  mode  of  use,  651 

Bights  and  liabilities  of  parties,  647 

Cannot  be  enlarged  beyond  terms  of  grant, 


EASEMENTS— Continued. 
By  instrument  which  does    not  describe 

the  land,  712 

Facilities  for  enjoyment  of,  648 
Injunction  to  prevent  interference  with. 

648 

Enjoyed  through  artificial  means,  713 
Continuous  and  discontinuous,  641 
Duty  to  maintain,  647 
Distinguished  from  license,  661 
An  interest  in  land,  642 
Not  an  interest  in  the  fee,  644 
Separable  from  land,  671 
To  draw  water  from  well  by  pipe,  261 
Of  drain  over  or  through  land,  719 
Of  drain  created  by  reservation,  719 
Of  eaves-drip,  183 
Of  light  and  air,  307,  714 
To  light  and  air  reserved  in  a  deed,  307 
Of  light  and  air  cannot  be  created  by  pre- 
scription, 307 
Of  air,  light,  and  extra  support  discussed, 

326 

Of  lateral  siipport  acquired  by  grant,  325 
To  lateral  support  acquired  by  prescrip- 
tion, 326 

Of  access  to  street  obstructed,  816 
Of  grantee  over  abutting  land,  712 
Interruption  of,  of  abutting  owner,  763 
Bights  of  way  in  general,  711-721 
Of  right  of  way  no  longer  needed,  755 
Of  right  of  way  is  an  incumbrance,  712 
By  individuals  in  public  ways,  682-685 
Of  right  of  way  granted  to  a  company,  714 
To  which  railroad  rights  of  way  are  sub- 
ject, 191 

Abandoned  of  right  of  way  by  railroad,  754 
Of  right  of  way  for  telegraph  line,  818 
Of  subways  and  pipe-lines,  841-860 
Of  state,  to  control  all  navigable  waters, 

406 

By  public,  include  what,  238 
Passage  of  public  over  streams  is  para- 
mount, 240,  241 

To   manufacturing    company  to  flow  ob- 
noxious matter  into  stream,  212 
Of  an  adjoining  landowner -in  party- wall 

ceases  when  wall  becomes  unfit,  339 
Bight  to,  in  party- wall  limited,  338 
In  party-wall   resting  wholly  on  land   of 

neighbor,  338 

In  party- wall  becomes  appurtenant,  338 
In  land  dedicated  to  public  use,  705 
Dedication  of,  to  public,  701-710 
Dedicated,  acceptance  of,  706 
Dedicated,   inure    immediately  to   public, 
704 

EAVES  : 

Prescriptive  right  to  drip,  676 

Easement  of  drip,  183 

Building  should  be  provided  with  trough, 

181 

Land  under,  held  to  be  conveyed,  836 
Measurements  to  or  from,  605 

EASTERLY : 

Meaning  of  word,  603 

EJECTMENT: 

Award  fixing  boundary-line  will  support, 

462 
To  succeed  in,  must  be  entitled  to  posses* 

sion,  77 


INDEX. 


603 


^References  are  to  sections. 


ELECTRICITY : 

(See   also   TELEGRAPH   AND  TELEPHONE 

LINES;  SUBWAYS.) 
Defined,  291 

Properties  and  character  of,  291 
Compared  to  other  vibratory  conditions, 

292 
Potential  of,  corresponds  to  intensity  of 

heat,  292 

Spoken  of  as  a  fluid,  291 
Capable  of  causing  damage,  when,  292 
Collected  for  pleasure  or  profit,  292 
Injuries  resulting  from  escape  of,  293 
Property  rights  affected  by,  291-300 
Its  effect  upon  the  earth,  291 
What  give  rise  to  suits  for  electrical  dis- 
turbances, 293 

Litigation  is  between  companies,  294 
Companies  using  it,  should  prevent  wires 

from  coining  in  contact,  296 
Of  electric-light  company,  used  partly  for 

public  purposes,  296 
Telephone    company  refused    relief    from 

earth  currant,  296 
Electric-light  plant  not  a  nuisance,  when, 

305 
Causing  public  to  suffer,  may  be  abated  as 

a  nuisance,  292 

Created  a  private  nuisance,  when,  292 
Impairing  a   person's    enjoyment   of   his 

estate,  292 

Conduits  for,  841-860 
Sale  of  company's  franchise,  874-878 

ELECTRIC  LIGHT: 

Poles  and  wires  in  street,  811-840 

ELECTRIC  RAILWAY : 

Lines  and  telegraph  circuits,  831 

Using  earth  as  return  circuit,  831 

Wires  of,  distinguished  from  telegraph- 
wires,  798 

May  not  employ  system  to  injury  of  tele- 
phone company,  830 

Injunction  at  suit  of  telephone  company 
refused,  830 

Required  by  mandamus  to  prevent  contact 
of  wires,  296 

Bights  in  streets,  781-800 

Changing  grade  of  street,  798 

ELECTROLYSIS : 

Injury  to  pipes  from,  293 

ELEVATED  RAILWAY  : 

In  streets,  756-800 

Injuries  to  abutting  owners,  from,  764 

An  element  of  danger,  764 

Smoke,  etc.,  from,  impairs  easement  of  air, 

764 
EMBANKMENTS  : 

May  be  erected  to  protect  land  from  over- 
flow, 132-134 

Erected  in  public  river,  indictable, when,  242 

Obstruct  surface  waters,  191 

Water  seeping  through,  173,  175 

EMINENT  DOMAIN  : 

Defined,  32 

A  corporate  franchise,  864,  875 
Sale  of  franchise,  875 
Power  of,  vested  in  the  states,  32 
:Not  exercised  by  railroad  company,  when, 
63 


ENCROACHMENTS : 

Upon  public  ways,  684 

Upon  adjoining  land,  336 

Of  sea  upon  land,  372 

Boundary  will  follow  stream,  377 

Means  taken  to  prevent  that  of  streams 

upon  land,  382 
Of  a  building  does  not  warrant  a  denial  of 

specific  performance,  336 

ENGINEER  : 

His  advice  and  that  of  a  lawyer,  361 
Should  know  peculiarities    of   law  in  his 

own  state,  514 

Should  have  general  knowledge  of  the  prin- 
ciples of  dedication,  703 

ENGINEERING  OPERATIONS : 

Knowledge  of  law  required  to  undertake, 

1  and  Preface. 

Importance  of  prescription  in,  671 
Polluting  stream,  207 

ENTER  AND  TAKE : 

License  of  purchaser,  667 

ENTIRETY  : 

(See  ESTATE-BY-ENTIRETY.) 

EROSION : 

Effect  of,  377 

Accompanied  by  accretion,  377 

Of  land  by  water,  371-400 

Of  water  is  as  square  of  its  velocity,  377 

ERRORS  : 

(See  also  MISTAKE  ;  SURVEYING.) 
In  descriptions,  543-570 
How  overcome,  578 
In  stating  area,  588-590 
Elements  of,  in  surveying,  571 
In  old  surveys  not  to  be  corrected,  574 
Grammatical  and  orthographical  in  deed, 

562 

ESCROW  : 

What  is  an  escrow,  45 

ESTATES : 

Classified,  11 

In  land  defined,  11-30 

How  acquired,  367 

Owner  in  fee  simple,  11 

Acquired  by  occupation,  32 

Party  first  taking  possession,  is  a  general 
occupant,  32 

Taken  by  heirs  as  special  occupants,  16 

Taken  by  grantee,  during  grantor's  life,  16 

To  create  it  for  life,  16 

Pur  autre  vie  occur,  when,  16 

Taken  by  executors  as  personal  property, 
when,  16 

In  Lands : 

May  be  taken  by  an  alien  friend,  34 
Of  deceased  alien,  34 
What  is  privity  of,  687 
Merged  and  resubdivided,  366 
Where  none  passes  by  deed,  376 
Merger  of,  extinguishes  easement,  645 
Adverse  user,  over,  676-680 
Description  applies  to  more  than  one,  553 
Map  of,  should  be  reviewed  and  revised, 
454 


INDEX. 


References  are  to  sections. 


ESTATES— Continued. 
On  Condition : 

Defined,  27 

Conditions  may  be  expressed  or  implied, 
27 

Conditions  precedent  or  subsequent,  27 
In  Coparcenary  : 

Defined,  25 
By  Entirety  : 

Possessed  by,  25 

Controlled  by,  25 

Created  by,  25 

No  rights  of  partition,  25 
In  Expectancy  : 

Cannot  be  had  until  a  future  time,  22 
In  Fee  Simple  : 

Defined,  14 

In  a  transfer,  the  conveyance  must  be  to 

grantee  and  heirs,  14 
In  Possession  : 

Gives  right  of  present  enjoyment,  22 
In  Reversion  : 

Defined,  23 
In  Severalty  : 

Defined,  26 

Opposed  to  joint  ownership,  26 
At  Sufferance  : 

Defined,  21 

How  created,  21 

Becomes  an  estate  at  will,  when,  21 
In  Tail  : 

Defined,  15 

Words  of  limitation  in  its  creation,  15 

General  and  special,  15 

Is  inalienable,  15 

May  be  barred  by  deed,  14 

Reverts  to  grantor,  when,  15 

Cannot  exist  in  personal  property,  15 
At  Will  : 

Defined,  20 

Ended  by  intention  to  terminate  tenancy, 
20 

Tenant  has  no  interest  that  he  can  con- 
vey, 20 

When  terminated  by  landlord,  20 

Determination   of,    not    recognized    by 

courts,  20 
For  Years  : 

Defined,  18 

ESTOPPEL  : 

Title  acquired  by,  32 

Applied  to  agreements  as  to  location  of 

boundaries,  499,  504 

None,  if  true  line  can  be  determined,  499 
License  irrevocable  by,  662,  663 
Should  be  pleaded,  499 

EVIDENCE  : 

(See   also    HEARSAY;    PAROL  EVIDENCE; 

SURVEYOR;  TESTIMONY.) 
To  establish  boundaries,  611-633 
Admissible  to  establish  starting-point,  630, 

631 

Maps  and  plans  as,  613-624 
Copies  of  old  maps  and  records,  615-618 
Field-notes  as,  617 
Of  person  since  deceased,  625-629 
Hearsay  of  boundaries,  when  admissible, 

620 
Trees  or  stumps  as,  580 


EVIDENCE—  Continued. 
Old  mounds  and  pits  as,  580 
Fences  of  monuments,  581 
To  identify  monuments,  580,  617-640 
Should  go  to  jury  as  presented,  572 
When  are  opinions,  627,  628 
Possession  is,  of  title,  514 
Of  possession  is  shown  by  notice  of  appro- 
priation, 75 

Of  the  need  of  water  for  public,  143 
Of  diversion  admissible,  when,  105,  111 
Of  benefit  from  obstruction   in    navigable 

waters,  not  admissible,  242 
Of  non-user  of  water-ditch,  76 
To  show  abandonment,  76 

EXCAVATIONS  : 

(See  also  ADJOINING  OWNERS  ;    BOUNDA- 
RIES; LAND;  LATERAL  SUPPORT.) 
On  one's  land  must  afford  lateral  support 

to  neighbor,  321-335 
Must  not  cause  damage  to  adjacent  land, 

327 

Bight  of,  on  one's  land,  324 
Care  and  diligence  required,  331 
Person    making,   not    liable  for  damages, 

when,  333 

Notice  of,  should  be  given  to  neighbor,  328 
Which  draw  underground  waters,  275 

EXCESS  : 

(See  also  ACREAGE;  DEFICIENCY.) 
Of  acreage  in  survey,  591 
In  acreage,  how  distributed,  597 
Area  not  considered,  when,  588-590 
Allowed  in  a  deed,  592 
When  land  is  described  by  adjoiners,  597 

EXCLUSIVE     FRANCHISE  : 

(See  also  CORPORATION  ;  FRANCHISE  ;  MO- 
NOPOLY; BIGHTS  or  WAY.) 
Not  in  favor,  with  courts,  147,  792 
Granted  to  water  company,  violated,  how, 

147 

Telegraph  company  cannot  contract  for,  819 
Not  granted  by  railroad  company  to  tele- 
graph company,  819 
To  operate  horse  railways,  795 
Granted  telephone  company  by  state,  822 

EXECUTION  : 

Sale  of  franchise  on,  877 

EXEMPTION  : 

From  taxation,  a  franchise,  865,  876 

EXISTENCE  : 

Of  corporation  terminated,  879-885 

EXTENT  OF  USE  : 

Of  water  for  irrigation,  75 

EXTINGUISHMENT  : 

Of  corporate  franchise,  879-885 

EXTRAORDINARY  : 

Flood,  is  a  question  lor  jury,  115 
Bains,  liability  determined  by,  181 
Use  of  waters  includes  what,  60 

FACT: 

Questions  of  law  and  fact,  628 
Questions  of,  are  for  the  jury,  611-613 
Surveyor's  knowledge  of,  627,  628 


INDEX. 
References  are  to  sections. 


605 


FAILURE  : 

Of  corporate  franchise,  879-883 

FAMILIAR  NAME  : 

Land  described  by,  554 

FEE- SIMPLE  : 

Estate  of,  defined,  11,  14 
Cannot  be  created  anew,  14 
Owner  may  dispose  of  it,  14 

FENCE : 

On  boundary-line,  605 
As  a  monument  in  a  survey,  581 
Evidence  of  boundary-line,  581 
Measurements  made  to  what  part  of,  605 
To  inclose  for  adverse  possession,  522 
To  obstruct  light  of  neighbor,  341 

FIELD-NOTES  : 

Lands  described  by,  410 
As  evidence  of  boundaries,  617 
Are  records  from  which  to  determine  orig- 
inal line  and  stakes,  574-580 
Governed  by  monuments,  573 
Against  map,  600 

FIELD  OPERATIONS  : 

Effect  on  descriptions,  404 

FIGURES  : 

Mistakes  in  a  description,  552 

FILLING : 

Wrongful,  to  another's  land  on  a  stream, 
382 

FIRE  : 

Want  of  water  and  house  destroyed  by,  148 

FIXTURES  : 

Defined,  7 

Chief  elements  in  determining,  7 

Some  chattels  are,  7 

Must  be  capable  of  becoming  personal  prop- 
erty, 8  • 

Whether  an  article  is  or  not,  a  question  of 
law  and  fact,  7 

Annexation  of,  may  be  actual  or  construc- 
tive, 7 

Leaving  them  upon  premises  is  abandon- 
ment, 8 

Law  allows  reasonable  time  for  removal  of, 
8 

May  be  removed,  when,  8 

Agreements  in  regard  to,  8 

Engines  and  machinery  are,  when,  7 

An  organ  in  a  church  is,  8 

Looms,  etc.,  in  cotton-mill  are  not,  7 

When  are  pipe-lines,  847 

Pass  to  good-faith  purchaser,  8 

FLAT-LANDS  : 

Subdivision  of  those  acquired  by  reliction 
383-390 

FLOODS  : 

(See  also  STREAMS  ;  WATERS.) 
Injuries  due  to,  90 
Protection  against,  131-140 
Structures  must  provide  for,  85,  113 
Question  whether  unusual  is  for  the  jury, 

Are  surface-waters,  when,  136 


FORCE  : 

In  prescription,  675-682 

FORFEITURE  : 

Defined,  32 

.  Of  charter  or  franchise,  796,  884 
Of  street-railway  franchise,  796 
Of  landed  interest  by  words  on  map,  454 

FOULING  : 

'  SIEEAMS; 


FRANCHISE  . 


i  KIOHT 

Character  and  kind,  861-863 

Granted  by  the  state,  861-863 

Value  of,  consists  in  what,  861-867 

By  Federal  government.  873 

Held  by  sovereign  power,  376 

Distinguished  from  a  mere  license,  661-670 

<oo 

For  term  of  years,  848 
On  condition,  871-877 
Which  constitutes  a  contract,  862 
When  a  contract  obligation,  868 
Eights  of  state  in,  to  be  protected  862 
Legislative  control  of,  862 
Legislation  affecting  remedies  of,  870 
Modified  by  ordinance,  869 
Power  of  legislature  to  amend,  limited,  868 

o71—  o7o 

Effect  of  power  to  amend,  871 
Protection  of  capital  invested  in  871 
Value  destroyed  by  adverse  legislation,  871 
Subject  to  police  power,  869 
And  the  labor  law,  871 
Exclusive  rights  in,  867 
Eight  to  a  monopoly,  867 
Constitutions  prohibit  unconditional  871 
Not  irrevocable  gifts,  871 
Of  eminent  domain,  864,  875 
Exemption  from  taxation,  865,  876 
Municipal  aid  is  a,  866 
A  railroad  charter  is,  731 
Of  water  company  to  be  purchased  by  city, 

May  be  granted  to  water  company  by  city, 

Of   public    to    use    streets    for  improved 

modes  of  travel,  296 
For  street  railway  defined,  786 
Of   telephone  company  to  use  streets  is 

subservient  to  rights  of  public,  296 
To  build  and  operate  pipe-line,  841-860 
For  fishing,  wrecking,  ferries,  and  mining, 

376 

In  shores  held  for  defenses  376 
Taxation  of,  886 
Taxes,  how  measured,  886 
Forfeiture  of,  884 

Eevocation  of,  for  certain  causes,  873 
Surrender  of,  to  state,  879-881 
Extinguishment  of  corporate,  879-885 
Effect  of  extinguishment,  885 
Sale  of,  on  execution,  877 
Not  forfeited  by  violation  of  injunction  151 
Mortgage  and  sale  of,  874-878 
Not  destroyed  by  erecting  new  structure, 


6o6 


INDEX. 


References  are  to  sections. 


FRAUD : 

Prevents  running  of  statute  of  limitation, 
when,  688 

FREEHOLD : 

Defined,  12 

FRESHET : 

See  FLOOD  ;  STREAMS  ;  WATER. 

FRUIT  : 

On  trees  near  boundary-line,  313 

GAS   AND   OIL  : 

(See  also  PEKCOLATING  WATERS;  PIPE- 
LINES ;  SUBWAYS.) 

Nature  arid  character  of,  282 

Compared  to  percolating  waters,  281 

Ownership  of,  in  land,  281-290 

Are  part  of  land  in  which  they  are  con- 
tained, 281,  282 

Are  part  of  the  realty,  283 

Not  subject  to  absolute  ownership,  282 

Drawn  from  land  by  adjoining  owner,  282 

Escaping  and  going  upon  another's  land, 
282 

Conveyance  of,  283 

In  grants  of  mineral  rights,  283 

Grant  of  gas-well  rights  is  exclusive,  when, 
283 

Gas  is  not  included  in  petroleum  or  car- 
bon oil,  283 

Natural  gas  is  not  heat,  283 

Petroleum  a  mineral,  283 

Eights  incident  to  their  appropriation,  284 

Wells  drilled  through  a  coal-mine,  284 

Allowed  to  escape  and  go  to  waste,  282 

Escaping,  appropriated  by  tenant,  283 

Escape  of,  and  destruction  of  vegetable 
life,  849 

Transportation  of,  841-860 

Pipe-lines  for,  841-860 

Statute  forbidding  transportation  from 
state  is  void,  283 

Leased  to  company  may  not  be  interfered 
with  by  lessor,  284 

GAS  COMPANY  : 

(See  also  CORPORATIONS  ;  FRANCHISES.) 

Its  incorporation,  organization,  and  con- 
trol, 285 

Is  a  quasi-public,  institution,  285 

Franchise  for  pipes  for  a  limited  term,  848 

Sale  of  franchise,  874-878 

Property  in  pipes  and  plant,  847 

Creating  unwholesome  odors  is  a  nui- 
sance, 305 

Pollution  of  waters  by  refuse  from  works, 
221 

Not  a  nuisance  when  business  is  conducted 
carefully,  305 

Liable  when  sewer-gas  mixes  with  illu- 
minating-gas, 264 

Its  pipes  must  not  obstruct  navigable 
stream,  242 

City  liable  for  damages  caused  by  its  gas- 
reservoir,  221 

Leasing  and  using  natural-gas  well,  284 
GATES  : 

Across  ways  to  prevent  adverse  user,  183, 
676-680,  684 

GEOGRAPHICAL  FEATURES : 

Judicial  notice  of,  551,  561 


GOOD  FAITH: 

In  adverse  possession  to  make  color  of 
title,  533 

GOVERNING : 

Factors  in  a  description,  571-610 

GOVERNMENT  : 

(See  also  BOUNDARIES;  CROWN;  MONU, 

MENTS;  PUBLIC;  STATE.) 
Its  duty  to  make  public  improvements,  861 
Controls  navigable  waters,  375-400 
May  authorize  surveyors  to  operate  on  prk 

vate  property,  353-355 
Telegrams  of,  have  priority  over  all  busu 

ness,  820 

Has  same  property  and  right  as  any  pro- 
prietor, when,  53 

Interest  of  persons  in  government  bound- 
ary, 363 

Section  corner  not  in  township  line,  577 
Monuments  control  in  government  surveys, 

577 

GRAMMAR : 

In  a  deed,  562 

GRANT : 

(See  also  DEED  ;  DESCRIPTION  ;  GRANTOR.) 
Description  is  essential  to,  367 
To  be  interpreted  in  light  of  its  date,  578 
Oldest  will  prevail,  602 
Inconsistent  one  with  another,  751 
Of  railroad  charters  are  public  franchises, 

731 
To  a  railroad  by  legislature  of  right  to 

occupy  streets,  758 
Soil  of  street  included,  when,  452 
One  half  of  bed  of  stream  included  in,  406 
Bounded  by  non-navigable  stream  goes  to 

its  middle  line,  403 

Extends  to  middle  of  stream,  when,  422 
To  high-water  mark,  374 
"To,"  "at,"  "along,"  "by,"  "on,"  "with," 
"up,"  or  "down"  a  stream  or  body  of 
water,  405-410 
On  lakes  and  ponds,  421-430 
Method  of  obtaining  additional  support,  325 
Shore  of  waters  may  become  private  prop- 
erty by,  376 

Of  waters  of  spring,  110 
Of  right  to  divert  waters,  62 
Of  right  to  underground  waters,  260 
Of  exclusive  right  to  supply  city  from  one 

source,  147 

Of  land,  forbidden,  except  to  riparian  own- 
er, 413 

Of  land  on  water,  comprises  what,  406 
Co_nveys  fee  to  land  under  a  wharf,  when, 

Of  land  with  no  outlet  to  street  except  over 

grantor's  lot,  715 
Eights  of  way,  the  subject  of,  712 
Of  rights  of  way,  implied,  when,  740 
Of  right  of  way,  if  absolute,  when,  735 
Of  right  of  way  for  ditch,  an  easement,  77 
Of  right  of  way  along  a  stream  does  not 

make  grantee  a  riparian  owner,  53 
Of  gas-well  rights  is  exclusive,  when,  283 
To  sink  test-wells  created  an  incorporeal 

hereditament,  when,  283 


INDEX. 
References  are  to  sections. 


6o7 


GRANTEE : 

Of  a  deed,  42,  556 

May  elect  between  two  tracts,  when,  553 

Conveyance  of  land  bounded  on  a  highway. 

446 

Taking  title  to  center  of  street,  447,  449 
May  claim  whole  of  street,  when,  443 
Has  right  to  have  street  kept  open,  714 
Takes  to  center  of  lake,  when,  421 
May  not  take  to  low-water  mark,  when,  421 
Of  right  of  way  along  a  stream  not  a  ripa- 
rian owner,  53 

Water,  a  consideration  with,  371 
May  not  be  deprived  of  riparian  rights,  424 
Of  all  water  of  stream,  77 
Of  water  right  is  entitled  to  take,  how  much, 

75 

May  use  water,  when,  75 
Not  required  to  reduce  quantity,  75 
Not    bound   to  maintain  spring  in  same 
place,  260 

GRANTOR  : 

Must  own  interest  conveyed,  42 

Cannot  retain  any  control  over  a  deed,  45 

May  acknowledge  execution  of  deed  before 

two  or  more  witnesses,  45 
Must  be  known  by  person  taking  acknowl- 
edgment, 45 

Induced  by  fraud  to  make  deed,  48 
Title  to  shore  derived  from  state  or  by  pre- 
scription, 411 
Entitled  to  mine  without  leaving  support, 

334 

Boundaries  determined  by  intention  of,  405 
His  intention  to  be  determined,  404,  572 
Conception  and   exception   of  description 

attributed  to,  404 

Describes  land  as  belonging  to  him,  552 
Of  railroad  right  of  way,  734 
May  maintain  ejectment  against  railroad, 

when,  735 
Loses  right  of  way  in  common  with  grantee, 

when,  717 

Erecting  structure  which  creates  a  nui- 
sance, 306 

GROUND- WATER  : 

(See    also    PEBCOLATING    and    UNDER- 
GROUND WATERS.) 
Pollution  of,  prevented  by  injunction,  270 

HALF: 

Land  described  "  east  half,"  554  a 

HARBOR   LINES  : 

Must  be  fixed  with  reference  to  navigation, 

381 
Establishment  of,  by  state,  gives  privileges, 

381 

Lands  reclaimed  within,  381-390 
Natural  accretion  limited  to,  381 
Land  outside  of,  belongs  to  whom,  381 
HEAT: 

Excessive,  is  a  nuisance,  302 
Electricity  and  heat,  292 
Natural  gas  is  not,  283 

HEDGE : 

Not  a  good  monument,  370 
HEREDITAMENTS  : 

Corporeal  and  incorporeal,  3 
Include  what,  3 


HIGH- WATER   MARK: 

(See  also  BOUNDARIES  ;  LAKES  ;  PONDS  ; 

SEA  ;  STREAM  ;  WATERS.) 
Denned,  374 
Descriptions  by,  376 
Of  fresh-water  rivers,  374 
Freshets  not  considered,  374 
Limits  riparian  owner's  rights,  when,  381 

HIGHWAY  : 

(See  also  ALLEY  ;  EOAD  ;  STREETS  ;  WAYS.) 
Measurements  to  or  from,  606 
Bridges  a  part  of,  720 
Established  by  adverse  use,  683 
Acceptance  of,  shown  by  construction  ot" 

culvert,  717 
Dedication  of,   is    complete  when    public 

uses  the  way,  702 

Travel  on,  interfered  with  by  surveyor,  355 
Bight  to  occupy  it  permanently,  242 
Person    using    it  first  will    be    protected 

against  injurious  interference,  295 
Laid  out  across  railroad,  751 
Crossing  street-railway  tracks,  785 
Steam  railroads  in,  756-760 
Telegraph  lines  in,  811-840 
Subways  in,  841-860 
Accretions  to  a  public,  379   • 

HOMESTEAD  : 

Defined,  17 
HOSTILE  : 

As  applied  to  possession,  517 
HOUSE-LOTS  : 

Described  by  lot  number,  541-552,  598 

Accretions  to,  on  stream,  406 

HUSBAND : 

Adverse  possession  of,  516 

HUSBANDRY : 

Uses  of  water  for,  71-80,  371 

ICE: 

(See  also  APPROPRIATION;  RIPARIAN 
OWNERS  ;  STREAMS  ;  WATERS.) 

Defined,  162 

Character  of  property  in,  162 

Beal  or  personal  property  in,  163 

Its  likeness  to  alluvion,  162 

Supply  of,  to  cities,  161-170 

Of  private  or  unnavigable  streams  belongs 
to  riparian  owner,  163 

In  taking  it,  mill-owner  must  not  be  de- 
prived of  water,  166 

Biparian  owner  sued  for  removing  it,  166 

Title  to,  in  person  entitled  to  use  of  water, 
167 

Of  lake  or  pond,  165,  167 

Of  navigable  streams  belongs  to  public,  164, 
168 

Belongs  to  person  taking  possession,  164 

Harvesting  may  impede  travel,  168 

Bight  to  take  it,  depends  upon  what,  164, 
167 

Cut  and  packed  is  subject  of  larceny,  163 

Measure  of  damages  for  taking,  169 

IDENTITY : 

Of  land  in  a  description,  550 

Of  land  fixed  by  reference  to  maps,  etc., 

555 

Of  a  corner  is  for  the  jury,  580 
Evidence  of,  of  monuments,  580,  617-640 


6o8 


INDEX. 
References  are  to  sections. 


IDIOCY : 

Disability  under  law  of  limitations,  688 

IGNORANCE : 

Cause  of  trouble  over  boundaries,  366 
Of  occupant  as  to  true  line,  its  effect  on 
adverse  possession,  517,  518 

IMPERFECT  : 

Description  of  land,  546 

IMPROVEMENT  : 

Of  laud  the  object  of  engineering  opera- 
tions, 1 

Made  under  a  mere  license.  661 

On  land  under  rules  of  law,  177 

In  making  must  not  destroy  lateral  support 
of  adjoiners,  321-335 

Of  land  gives  title,  when,  372 

Made  upon  submerged  land  without  com- 
pensating owner,  241 

Of  navigable  waters  must  not  interfere 
with  private  property,  241 

Of  navigation  superior  to  individual  rights, 
241 

Navigability  does  not  depend  upon,  233 

INCLOSURE  : 

To  constitute  adverse  possession,  522 

INCORPOREAL  RIGHTS  : 

(See  also  EASEMENTS  ;  EIGHTS  OF  WAT.) 
Comprise  what,  29 
Must  be  conveyed  by  deed,  43 
Acquired  by  prescription,  671-700 
Acquired  by  adverse  user,  671-700 
Affected  by  public  improvement,  671 
Met  in  engineering,  etc.,  641 

INCREASE  : 

Of  land  by  accretion,  etc.,  371-390 

INDUCTION  : 

(See  also  ELECTRICITY  ;  EIGHTS  OF  WAT  ; 

TELEGRAPH-LINES.) 
In  telephone  wires  prevented,  295 
Interference  with  telephone  lines  by,  828 

INDUSTRIAL  USES  : 

Of  water  of  a  stream,  59,  63,  75 

INHERITANCE  : 

Denned,  13 

INJUNCTION  : 
To  Prevent : 

An  act  when  no  damage  is  suffered,  219 

What  will  be  considered,  219 

Wrongful  taking  of  water,  220 

Wasteful  use  of  water,  58 

Pollution  of  stream,  61,  209 

Pollution  of  stream  will  be  denied,  when, 

219 
Operation  of  works  which  pollute  stream, 

201 

Fouling  of  ground- waters,  270 
Pollution  of  waters  by  chemicals,  216 
Increased  discharge  of  sewage,  219 
Use  of  stream  for  stock-farming,  208 
Obstruction  of  stream,  118 
Detention  of  waters,  86,  150 
Shutting  off  water,  150 
Enforcement  of  unreasonable  rules,  151 
Discharge  of  water  into  drain,  178 


INJUNCTION—  Continued. 
To  Prevent : 
Person  from  removing    trees  in  public 

ways,  319 

Eemoval  of  shade-trees,  717 
Erection  of  telegraph  line,  814-816 
Use    of    single-trolley  system    of    street 

railways,  296 
Electric    railway  from    interfering  with 

operation  of  telephone  line,  830 
One  railroad  from  interfering   with  an- 
other, 751 

Gas  company  from  laying  pipes,  846 
Destruction  of  lateral  support,  329 
An  overhanging  projection,  336 
Erection  of  building  excluding  light  from 

neighbor's  house,  308 
Mortgagor    from    removing    permanent 

fixtures,  8 
Multiplicity  of  suits,  when,  223 

INJURIES  : 

(See  also  DAMAGES  ;   MEASURE  OF  DAM- 
AGES.) 

Defined  and  described,  132 

To  an  easement,  only  danger  and  inconven- 
ience, 763 

Temporarily    depriving    owner  of  use    of 

'  property,  193 

Eesultiug  from  expropriation  of  property, 
241 

To  abutting  estates,  761,  762 

To  abutting  owners  from  elevated  roads, 
764 

To  a  lot  by  railroad  bridge,  721 

Caused  by  defective  railroads,  794 

Eesulting  from  escaping  or  induced  elec- 
tricity,' 293 

Eesultiug  from  contact  of  electric  wires, 
296,  827 

To  pipes  by  electrolysis,  293 

Caused  by  discharges  from  gas-works,  221 

To  lateral  support,  329 

From  overhanging  trees,  317 

By  smoke  must  result  from  unreasonable 

use  of  property,  301 

N  Caused  by  smoke,  etc.,  from  a  low  chimney, 
305 

To  vessels  by  submarine  cable,  824 

To  dam,  89 

To  riparian  owner  by  diverting  waters,  61 

Due  to  floods,  90 

To  property  from  water  by  accidents,  183 

From  roof-water,  180,  181 

From  snow,  etc.,  from  roof,  182 

Failure  to  guard  against  injuries  from  pol- 
lution of  waters,  220 

INSANITY  : 

Disability  under  law  of  limitations,  688 

INSUFFICIENT  : 

Description  of  land,  546 

INTENTION  : 

(See  also  BOUNDARIES  ;  DEED  ;  DESCRIP- 
TION; GRANT.) 
Of  parties,  if  ascertained,  will  prevail,  405- 

410,  450,  542,  544,  550,  557,  572,  633 
In  a  deed,  how  shown,  557,  558 
Must  be  gathered  from  deed,  542 
Determines  limit  of  title,  of  deed,  450 
Is  the  vital  element  in  a  description  or 

dedication,  701 


INDEX. 
References  are  to  sections. 


6o9 


INTENTION — Continued. 

Of  grantor  ascertained  by  rules  of  con- 
struction, 14 

To  claim  and  hold,  essential  to  adverse 
possession,  517,  518 

Adverse  and  hostile  character  of  posses- 
sion a  question  of,  517 

Best  evidence  of,  571 

Evidence  to  explain,  550 

Of  parties  should  be  shown  in  submission 
to  arbitration,  471 

Of  party  making  annexation  the  chief  ele- 
ment in  determining  fixtures,  7 

Of  alteration  will  not  change  chattel  to 
fixture,  8 

Of  landowner  to  dedicate,  701-703 

Of  dedicator  must  be  expressed,  454,  709 

To  make  excavations  must  be  made  known 
to  adjoining  owner,  322 

To  convey  a  certain  area,  588-597 

Not  to  make  a  road  a  boundary,  582 

Does  not  determine  trespass,  351 

Presumption  of  abandonment  created  by 
non-use,  76 

To  create  an  easement  of  light  and  air,  307 

INTEREST  : 

Of  a  witness  in  boundary  case,  619,  625 
Private  interest  in  government  boundary. 
365 

INTERFERENCE : 

With  light  and  air,  302,  308 
Of  claims  to  land,  532 
Of  surveyor  with  travel  on  street,  355 
With  trees  growing  in  public  ways,  319 
With  telephone  lines  by  induction,  828 
Between  currents,  prevented  by  metallic 
circuit,  830 

INTERPRETATION  : 

Of  descriptions  in  deeds,  541 

Of  deeds  when  parts  conflict,  571-610 

INTERRUPTION  : 

What  amounts  to  an,  676-680 

Method  or  means  of,  680 

Instances  of,  679 

In  prescription,  183,  676-680 

Of  rights  of  way,  676-680 

Of  adverse  possession,  529 

Of  adverse  user  and  disabilities  of  land- 
owner, 688 

Determined  by  location  and  character  of 
land,  531 

INTERSECTION  : 

Of  streets  and  roads  in  descriptions,  452 

INVASION  : 

Of  property  rights  and  prescription,  671- 
700 

IRON   PIPE  : 

As  a  monument,  370 

IRREVOCABLE : 

See  GRANTS  ;  LICENSE  ;  EEVOCABLE. 

IRRIGATION  : 

(See  also  APPROPRIATION  :  PRIOR  APPRO- 
PRIATION: STREAMS;  WATERS.) 
Defined  and  described,  71 
Nature  of  rights,  77 


IRRIGATION—  Con  tinned. 
Under  common  law,  71 
Local  laws  of  states,  72 
A  natural  want,  when,  71 
Riparian  owners  share  equally,  when,  71 
Use  of  water  for,  is  public,  74 
In  arid  countries,  71-77 
Eights,  abandonment  of,  76 
Failure  to  use,  evidence  of  abandonment 

76 

Eight  to  divert  water  for,  71 
Eights  by  prior  appropriation,  73 
May  not  conduct  surplus  water,  75 

ISLANDS  : 

Ownership  of ,  431 

Ownership  by  civil  and  common  law,  431 

Boundaries  of,  431,  432 

Made  by  accretion,  378 

Washed  away,  and  reformed  by  accretion, 

belong,  380 

Alluvion  deposited  against,  432 
Title  to  does  not  include  flats,  421 
Property  in,  when  joined  to  land,  378,  431. 

432 

Formed  by  sudden  change,  431 
Formed  over  site  of  mainland,  380 
Eising  in  sea  or  navigable  river,  431 
In  Lake  Huron,  431 

JOINT  OWNERS  : 

Defined,  25 

Of    party-wall    has    right   to  increase  its 

height,  340 
Cannot  hold  adversely,  77 

JOINT  TENANCY  : 

Defined,  25    ' 

Must  possess  four  essential  elements,  25 

Main  feature  is  survivorship,  25 

Created  by  purchase,  25 

Cannot  exist  between  corporations,  25 

In  line  trees  and  shrubs,  311-314 

JUDGE : 

See  ARBITRATOR;  COURT;  JURY. 

JUDICIAL  NOTICE  : 

Of  abbreviations,  561 

Of  geographical  features,  551,  561 

Of  variation  of  magnetic  needle,  561 

JURY: 

Determines  questions  of  facts,  611,  612 
Decides  question  of  damages,  223 
Decides  whether  an- odor  is  a  nuisance,  305- 
Determines  whether  pollution  is    a    nui- 
sance, 264 

Determines  whether  stream  is  public  high- 
way, 243 
In    determining    damages,    may    consider 

what,  223 

Determines  boundaries,  when,  611-613 
Will  consider  what  in  determining  bound- 
ary, 611-640 

Court  should  leave  it  unbiassed,  612 
Should  'decide  on  evidence,  without  com- 
ments by  court,  572 

JUSTICE  : 

See  COURT. 
LABOR  LAWS: 

Constitutionality  of.  869 
Corporations  subject  to,  871 


6io 


INDEX. 


References  are  to  sections. 


LAKES  AND  PONDS  : 

(See      also      BOUNDARIES;      NAVIGABLE 

STREAMS;  WATERS.) 
Boundaries  on,  421-430 
Accretions  to,  361-390 
Differ  from  rivers,  235 
Boundaries  on,  depend  on  navigability,  421 
Prescriptive  rights  to  waters  of,  671-700 
Shore  beach,  bank,  or  water's  edge,  423 
Title  to  bed  of,  421 
Receding  waters  of,  424 
Waters  of,  lowered  for  improvement,  424 
Natural,  enlarged  artificially,  422 
Lauds  reclaimed  from,  381-390 
Title  to  island  in  Lake  Huron,  431 
Eight  to  ice  of,  165 

LAND: 

(See  also  ACREAGE;  AREA;  BOUNDARIES; 
DEED  ;  DESCRIPTION  ;  EASEMENTS  ;  ES- 
TATES ;    MORE  OR   LESS  ;    EIGHTS    OF 
WAY  ;  SURVEYS.) 
Use  of  the  word,  5 
Includes  an  easement,  when,  5 
Who  may  hold  and  own,  34 
Reserved  to  original  owner,  455,  456 
Estates  merged  and  subdivided,  366 
If  devise  of,  is  personal,  the  devisee  takes 

the  fee,  14 

Descended  by  special  customs,  33 
A  house  becomes  a  part  of  it,  when,  6 
Things  annexed  constructively  belong  to  it, 

Various  estates  in,  described,  11-30 
Held  by  a  trustee,  34 

Right  to  own  and  dispose  of,  includes  pow- 
er to  mortgage  it,  36 
Rights  incident  to  : 
Conditions  existing  naturally,  292 
Substances  which  constitute  the  soil,  292 
Minerals,  including  water,  55, 281-290, 371 
Riparian  rights,  55 
Lateral  support,  321-340 
Ownership  of  gas  and  oil  in,  281-290 
Light  and  air  incident,  301 
Title  Acquired  or  Transferred  : 
Title  to,  determined  by  state  laws,  412 
Acquired  by  operation  of  law,  31 
Acquired  by  purchase,  31 
Acquired  by  original  occupation,  31 
By  grant  or  by  law,  367 
Title  to,  cannot  be  shown  by  parol  evi- 
dence, 495 
Award  of  arbitrators  does  not  affect  title 

to,  469 
Ownership  of,  determined  by  arbitration, 

when,  462 

Islands  belong  to  whom,  378,  431,  432 
By  the  unit  measure,  590 
Formed  by  Accretion  : 
Increase  of,  called  accretion,  371-379 
Owners  of,  upon  lakes  have  accretion  and 

reliction,  381 
Between  levee  and  river  belongs  to  whom, 

376 

Made  by  filling  navigable  stream,  381 
Conveyance  of,  includes  accretions,  378 
Accretions  to,  extending  in  front  of  an- 
other's land,  378 
Reserved  for  public^  use,  who  holds  title 

to  accretions,  379 
When  not  an  accretion,  378-390 


LAND —  Continued. 

Formed  by  Accretion  : 

Loss  of,  by  erosion  or  submergence,  371- 

390 

Washed  away  and  reformed,  380 
Inside  of  harbor-lines  belongs  to  whom, 

381 
Means    to     prevent     encroachment    of 

streams  upon,  382 
Reclaimed  and  Reformed: 
Formed  by  reliction,  424 
Reformed  on  site  washed  away,  380 
Title  to,   which   reappears    after  being 

submerged,  380 
From  receding  waters  belongs  to  whom, 

432 

Reclaimed,  how  subdivided,  383 
Division    of   lowlands    among    abutting 

owners,  383-390 
Under  ponds  belongs  to  riparian  owners, 

382,  421,  422,  424 

Under  water,  how  measured,  387 
Under  navigable   stream,  how   divided, 

383 

Gradually  submerged,  377-390 
Submerged,  improved  without  compen- 
sation to  owner,  241 
Title  to,  when  bed  of  lake,  421 
Title   to,  situated  within  meander-line, 

414 

Upland  owner  takes  to,  where,  414 
Newly  formed  in  old  bed  of  river,  431 
Reclaimed  from  water  of  a  harbor,  381 
Projecting  into   water,   part  of  quarter 

section,  409 
How  Described : 
Boundary  of,  defined,  364 
Ways  of  describing,  361-370,  543 
Extent  of,  how  determined,  368 
As  part  of  a  whole,  554  a 
As  belonging  to  grantor,  552 
Description  applies    to   more  than  one 

parcel,  553 

Sufficiency  of  description,  543,  544 
Failure  of  description,  367 
Conveyance  void  for  uncertain  descrip- 
tion, 544 

Result  of  correcting  descriptions,  363 
Defined  by  the  sea,  372 
Described  by  lake  or  pond,  421-430 
"  By,"  "  on,"  or  "  running  along"  lake  or 

pond,  423 

By  an  inland  navigable  river,  238 
By  non-navigable  stream,  371,  406,  421 
"At,"  "along,"  "by,"  "on,"  and  "with" 

a  stream,  406-408 
Under  water  as  part  of  area,  411 
By  a  street  or  way,  406,  445,  446,  709 
By  line  of  a  railroad,  544 
By  lot  number,  377 
By  reference  to  a  map,  410,  599,  600 
Determined  by  arbitration,  461-490 
Possession  of : 

Title  to,  established  by  possession,  514 
Adverse  possession  of,  511-540 
Possession  must  be  by  claimant,  524 
To  be  an  occupant,  a  person  must  use 

and  possess,  32 
Acquired    by    adverse    possession,   how 

limited,  368 
Extent  limited  to  that  occupied,  368 


INDEX. 


"References  are  to  sections. 


LAND—  Continued. 
Possession  of : 
Held  adversely  should  be  inclosed  on  all 

sides,  522 
Hold  uiider  mistake  as  to  boundaries  is 

held  adversely,  517 

Location  aud   character  determine    ad- 
verse possession,  531 
Right  of  way  over  wild  and  unimproved, 

521,  683 

Payment  of  taxes  not  possession,  523 
Public's  right  of  way  over,  acquired  by 

user,  683 

Prescriptive  rights  in,  671-700 
Prescriptive    rights    over,    acquired    by 

railway,  535,  684,  685 
Disturbance  of  possession  is  a  trespass, 

351 
After  dedication  title  cannot  be  acquired 

by  adverse  possession,  705 
Good    faith    necessary  to    acquire    title 

under  color  of  title,  533 
Casements  in  : 

Subordinate  to  dominant  right,  77 
Cannot  create  an  easement  in  land  not 

described,  712 
Bight  of  way  when  surrounded  by  land 

of  another,  715 

Eights  in,  by  dedication,  701-710 
Dedicated  for  strictly  public  purposes, 

705 

Dedicated  for  a  particular  use,  705 
Dedicated  for  highway  subject  to  what 

right,  708 

Bight  to  land  dedicated  to  public  extin- 
guished by  non-user,  707 
Improvements  on  : 
Essential  to  a  site  for  public  works,  1 
Under  rules  of  law,  177 
Condemned    by  government    for   public 

purposes,  32 
Structure  erected  upon,  without  owner's 

permission,  6 
Taken  under  public  grants,  by  a  railroad, 

751 
Taken  by  city  for  street  purposes  without 

owner's  consent,  703 
Telegraph  lines  strung  over,  817 
Leased  for  mining  purposes,  283 
Conveyance  of,  for  erection  of  reservoir, 

272 

Future  changes  and  transformations,  366 
Injuries  to  : 
By  a  neighbor's  acts,  193 
By  surface- water  not  drained  by  city,  186 
By  obstruction  of  surface-water,  191 
By  diversion  of  surface-waters,  194 
By  refuse  from  factory,  272 
By  manufacturing  plant,  302 
By  destruction  of  trees,  320 
By  percolations  from  ditch,  274 
By  deposits  on  land,  223 

LANDMARKS  : 

Not  to  be  upset  by  surveyors,  574 

LANDOWNER  : 

(See  also  ABUTTING,  ADJOINING,  and  RI- 
PARIAN   OWNERS;  BOUNDARIES;  EASE- 
MENTS.) 
Rights  of: 

To  improve  his  own  land,  2,  177 


LANDOWNER—  Continued. 
Rights  of : 

To  make  improvements  by  giving  neigh- 
bor notice,  322 

To  divert  waters  in  making  improve- 
ments, 271 

To  drain  soil  in  making  improvements, 
178 

To  license  another  to  make  improve- 
ments, 661-670 

To  change  natural  condition  of  his  land, 
252 

To  lateral  support  for  his  land,  321,  323 

To  recover  for  injury  to  land,  193,  194 

To  be  compensated  for  injury  from  pro- 
jections, 308 

To  recover  for  injuries  from  a  low  chim- 
ney, 305 

To  enjoin  unpleasant  noises  and  odors, 
302 

Whose  land  contains  oil  or  gas,  282 

To  make  excavations ;  must  care  for 
neighbor's  lateral  support,  321-335 

To  make  excavations  and  let  in  the  sea 
272 

To  excavate  soil  over  subterranean 
stream,  258 

When  adjoining  building  falls,  327 

To  enjoin  overhanging  building,  when, 
336 

To  build  party- wall  higher,  340 

For  building  over  line  by  mistake  and  ad- 
verse possession.  336 

To  reserve  a  strip  around  town-site,  455 

Of  access  to  street,  759 

To  soil  of  a  highway,  owns  to  the  middle, 
449 

To  prevent  telephone  lines  in  street,  814- 
816 

To  obstruct  right  right  of  way  and  open- 
ing another,  716 

In  a  block  reserved  for  a  park,  706 

To  revoke  consents  made,  789 

To  establish  boundary  by  agreement,  461- 
510 

To  deny  boundary-line  after  consenting 
to  a  survey,  467 

To  authorize  entry  by  license,  740 

To  exclude  the  public  from  way  or  beach, 
683 

To  take  away  minerals,  284 

To  enter  and  take  when  a  purchaser, 
667 

To  enjoy  light  and  air,  301 

To  light  and  air  obstructed,  301 

To  build  fence  to  shut  off  light  and  air 
from  neighbor,  341 

To  permit  trees  to  overhang  a  public  way, 
318 

To  recover  damages  for  destruction  of 
his  trees,  820 

To  destroy  line-trees  and  build  to  line, 
314 

By  adverse  use  of  successive  owners,  686, 
687 

By  adverse  possession  injured  by  pollu- 
tion of  stream,  209 

Lost  by  interruption  of  adverse  user  by, 
676-680 

Acquired  by  dedication,  701-710 

Acquired  by  prescription,  671-700 

To  take  ice,  167 


612 


INDEX. 


References  are  to  sections. 


LANDOWNER — Continued. 
Rights  of : 
To  exclude  public  from  taking  ice  from 

lake,  165 

To  enjoin  diversion  of  water,  108 
To  seek  benefits  of  stream,  371 
To  riparian  rights  in  a  stream  near  by,  51 
To  equal  rights  to  waters  with  others,  262 
To  store  water,  when,  75 
To  sell  rights  in  water-supply,  260 
To  collect  water  and  allowing  it  to  escape, 

272,  274 
To  take  water  which   would   pass   into 

neighbor's  land,  272 
To  beds  of  waters  determined  by  laws  of 

state,  414 

To  dig  well  and  draw  water,  272 
To  water  flowing  over  land,  174 
To  prevent  accumulation  of  water,  178 
To  surface-water,  174 
To  protect  land  from  surface-waters,  177 
To  drain  surface-water  into    adjoining 

pond,  179 
To  damages  for  flooding  by  obstruction 

of  surface-waters,  191,  192 
To  pollute  underground  waters,  263 
To  enjoin  discharge  of  sewage  polluting 

river,  213 
To  percolating  waters  beneath  surface, 

252 
To  collect  percolating  water  into  stream, 

254 
To  prevent  water  percolating  from  his 

land,  254 

To  intercept  natural  underground  per- 
colations, 252,  254,  261 
To    drain    natural     percolations     from 

neighbor,  254 
To    maintain    action    for    diversion    of 

underground  water,  when,  259 
To   drain  his    land    though    he    grants 

springs,  261 

To  drain  waters  into  watercourses,  184 
To  make  ditches   for  agricultural   pur- 
poses, 178 
To  a  spring  from  which  no  stream  flows, 

254 

To  usa  waters  of  spring,  when,  254 
To  damages  from  overflow,  when,  105 
To  erect  barriers  to  avoid  overflow,  136 
To  maintain  action  for  obstruction   of 

viaduct,  when,  51 
To  machinery  erected  by,  7 
To  bring  action  for  replevin,  when,  8 
To      maintain    ejectment      or    trespass 

against  railroad,  when,  735 

Liability  of: 

For  diverting  underground  stream,  275 
Not  for  polluting  water,  when,  267 
For  polluting  underground  water,  266 
For  creating  artificial  underground  cur- 
rent from  stream,  272 
For  causing   artificial   percolation,   272, 

275 
For  sewage  percolations  into  neighbors' 

cellars,  267 
For  allowing  water  to  collect,  to  injury 

of  neighbor,  269 

For  discharging  collected  waters,  178 
For  changing  quantity  and  character  of 
water,  216 


LANDOWNER—  Continued. 
Liability  of : 

For  increased  flooding  of  land,  caused  by 
trees,  136 

Liable  for  injuries  caused  to  opposite 
shore,  when,  137 

For  injury  to  another  by  protecting  land 
from  water,  178 

For  intercepting  source  of  spring,  when, 
275 

For  maliciously  obstructing  flow  of 
springs,  271 

For  taking  all  the  waters  of  a  creek,  172a 

For  poisoning  his  well,  266 

For  fouling  neighbor's  well,  266 

For  permitting  gas  to /escape  and  go  to 
waste,  282 

For  injury  from  escaping  oil,  267 

For  obstructing  a  street,  709 

For  selling  property  laid  out  in  streets, 
703 

For  allowing  dangerous  substances  to 
remain  upon  his  land,  263 

For  using  land  as  a  nuisance  to  neigh- 
bor, 266 

For  injury  to  neighbor  by  extraordinary 
use,  296 

For  leaving  excavation  open  to  excessive 
weather,  332 

For  fall  of  party-wall  on  his  neighbor, 
when,  343 

Of  upper  owner  to  pay  expense  of  pre- 
venting damage,  220 

Not  for  injury  to  neighbor,  when,  269 

By  contract  to  keep  road  private,  711 

For  preventing  tenant  from  removing  fix- 
tures, 8 

LANDSLIDES  : 

Effect  on  boundaries,  390 

LATENT : 

Ambiguity  in  a  deed,  542 

LATERAL  SUPPORT: 

(See    also    EASEMENTS  ;     EXCAVATIONS  ; 

PARTY- WALL.) 

Common-law  doctrine  of,  324 
Must  prove  sufficient,  323 
Precautions  to  be  taken,  333 
Extra  support  not  inherent  to  land,  325 
Additional,  how  obtained,  325 
Prescriptive  right  to  extra  support  treated, 

326 

Eight  to  additional,  must  be  acquired,  325 
Kemoval  of,  may  be  agreed  upon,  334 
Bern  oval  of,  by  city  or  town,  334 
Eemoval  of,  by  railroad  company  is  a  tak- 
ing of  property,  333 
Grantor  of  land  may  remove,  334 
One  not  entitled  to,  from  neighbor's  mines, 

334 

Upheaval  of  neighbor's  lands,  334 
Right  of,  passes  by  conveyance,  325 
Exists  only  so  long  as  party-wall  continues 

to  be  sufficient,  339 
Of  ancient  adjoining  structures,  326 
Must  be  provided  for  surface-soil,  334 
Loss  of,   from  excavation   for    sewer     or 

dredging,  334 

Of  adjoiuer's  land  and  buildings,  321-335 
Mutually  granted  and  reserved,  325 


INDEX. 


References  are  to  sections. 


LAW: 

(See  also  LEGISLATURE  ;  ORDINANCES; 
STATUTES.) 

Fundamental  knowledge  of,  required,  1 

Questions  of  fact  and  law,  628 

Object  of, .is  to  ascertain  intention  of  par- 
ties, 572 

Of  U.  S.  supersede  state  statutes,  when,  822 

In  regard  to  private  grants,  33 

Favors  vesting  of  estates,  24 

Relations  of  law  and  surveying,  361 

Boundaries  established  by,  368, 401 

Of  boundaries  on  beaches,  shores,  and 
banks,  371-420 

Of  boundaries  upon  navigable  waters,  375 

Of  accretion  in  this  country,  371-420 

Corporations  are  subject  to  what,  870 

Allows  reasonable  time  for  removal  of  fix- 
tures, when,  8 

Requires  owner  to  exclude  filth  from  neigh- 
bor's land,  when,  267 

Protecting  owners  of  buildings  against  in- 
juries from  excavations,  324 

Efforts  of,  to  quiet  titles  and  make  secure 
rights  of  citizens,  491 

Of  adverse  possession,  511-540 

Pertaining  to  metals  and  minerals,  286 

Will  not  permit  a  person  to  take  another's 
waters,  when,  271 

Of  ownership  of  sea,  375,  376 

Making  it  a  crime  to  obstruct  navigation 
applies  to  permanent  structures,  243 

That  logs  shall  not  be  floated  down  rivers 
unless  bound  together,  243 

In  different  states  regarding  surface- 
waters,  176 

Regarding  subterranean  waters,  251,  259 

Pertaining  to  destruction  of  underground 
waters,  251-280 

Recognizes  no  correlative  right  in  regard 
to  percolating  waters,  252 

Regarding  artificial  percolations,  274 

Authorizing  drainage  of  lake  without  ripa- 
rian owners'  consent  is  void,  54 

Applicable  to  public  roads  is  applicable  to 
streams,  238 

Protecting  shade-trees,  319 

Impose  restrictions  on  telegraph  com- 
panies, 823 

Regarding  company's  right  to  protection 
from  disturbances  of  other  companies,  295 

Depriving  water  company  of  property  with- 
out process  of  law,  151 

LEASE  : 

Description  of  premises  in,  19 

Not  describing  premises  with  certainty  is 

void,  19 

Of  accretions  includes  what,  378 
Of  a  building  held  to  convey  land  under 

eaves  and  projections,  336 
Of  submerged  lauds,  389 
Of  surplus  water  of  a  canal,  55 

LEGISLATURE  : 

Controls  all  public  ways,  756,  787,  812-824 

Control  over  franchises,  862 

Powers  of: 

To  impair  obligation  of  contracts,  765 
To  impair  or  destroy  property  rights,  765 
To    alter,    amend,    or    repeal    corporate 

charter,  870-872,  879-885 
To  revoke  franchises,  873,  882 


LEGISLATURE— Continued. 
Powers  of: 

To  impair  franchise  obligations,  868 

To  subject  corporations  to  police  power, 
869 

To  dissolve  a  corporation  by,  879-885 

To  enact  laws  affecting  remedies,  870 

To  control  highways,  792 

To  appropriate  street  for  railway,  781 

To  grant  right  to  occupy  streets,  758 

To  authorize  use  of  highway  by  railroad, 
756 

To  permit  a   street-railway  company  to 
use  another's  tracks,  785 

To  judge  amount  of  owner's  title  to  be 
taken  for  public  use,  731 

To  authorize  erection  and  operation  of 
water-works,  141 

To  authorize  extension  of  railroad,  794 

To  permit  construction  of  steam  railroad, 
when,  708    ' 

To  grant  monopoly  to  water  company, 
when,  147 

To  permit  cities  to  take  water  from  ponds 
for  domestic  use,  54 

To  fix  rates  of  water  companies,  151 

To  confer  right  to  condemn  private  prop- 
erty, 143 

To  take  private  property  for  a  landing, 
244 

To  grant  same  privilege  to  two   com- 
panies, 787 

To  authorize  erection  of  dam  in  a  navi- 
gable river,  143 

To  authorize  improvement  of  navigable 
rivers,  245 

LIABILITY : 

Fixed  by  negligence,  269 

Not  incurred  by  trespasser  making  neces- 
sary survey,  354 

Of  persons  holding  under  riparian  owners, 
52 

For  unnecessary  detention  of  waters,  81 

For  diverting  stream,  131 

For  diverting  water  into  a  watercourse,  75 

For  constructing  embankment  on  a  stream, 
132 

For  carelessly  erecting  barrier  of  a  stream, 
62,  131,  137 

For  overflowing  land,  85 

Of  grantee  using  water,  75 

Of  mill-owner  injuring  ice  privileges,  166 

Of  subordinate  mill-owner  who  reduces 
water,  63 

For  collecting  water  to  neighbor's  injury, 
269 

For  defective  dam,  87 

For  injuries  to  dam,  89 

Owner  must  build  dam  free  from  defects, 
87 

For  refuse  carried  upon  others'  land,  217 

For  fouling  underground  streams,  how  de- 
termined, 267 

Of  person  corrupting  neighbor's  water,  263 

Of  sewer-owner  when  waters  escape,  272 

Of  gas  company  when  sewer-gas  causes  in- 
jury, 264 

Of  landowner  injuring  neighbor  by  artificial 
percolations,  272 

Not  incurred  by  any  one  person  when  sev- 
eral caused  pollution,  214 

Of  person  committing  public  nuisance,  303 


614 


INDEX. 


'References  are  to  sections. 


LIABILITY—  Continued. 
Of  property  owners  for  unhealthful  dwell- 
ing, 272 

For  defective  construction  of  drain,  189 
Of  person  driving  logs  in  stream  to  injury 

of  riparian  owner,  243 
For  destruction  of  line-trees,  314 
Of  persons  causing  injury  by  discharge  of 

electricity,  292 
Of  water  company  for  projections  above 

grade  of  street,  145 
Of  a  City: 

For  taking  excess  of  water,  143 

For  negligent  construction  and  operation 
of  works,  14 

For  defective  plans  for  drainage,  188 

For  defective  sewers,  215 

For  draining  well  by  public  works,  255 

For  damages  to  a  well  by  erection  of  gas- 
;  reservoir,  241 

For  injury  from  defective  water-pipes, 
145 

For  lowering  underground  waters,  255 

For  fouling  a  stream,  215 

For  obstructing  street,  721 

LICENSE  : 

Denned,  661 

Distinguished  from  easement,  661 

Distinguished  from  a  franchise,  661-670, 
786 

Importance  of,  in  construction  work,  661 

Consideration  paid  for,  663 

Executory  and  executed,  661-669,  741 

Revocable  and  irrevocable,  661-670 

Revocable  character  of,  669,  741 

Irrevocable  by  estoppel,  663 

Exhausted  by  one  act,  665 

By  acquiescence  owner  may  have  compen- 
sation, 665 

The  subject  of  transfer,  668 

Adverse  possession  by,  516 

To  make  improvements  on  land,  661-670 

To  build  and  operate  a  railroad,  665,  741 

To  build  water-works  and  sewers  irrevo- 
cable, 664 

To  enter  and  connect  railroad  tracks,  741 

To  enter  premises  and  protect  structures 
during  excavation,  324 

Person  making  excavation  must  have  li- 
cense to  enter  neighbor's  land,  324 

To  hunt  and  fish,  667 

To  maintain  telegraph  line  by  railroad 
company,  818 

To  railroad  to  lay  tracks,  740 

Subways  and  pipe-lines  built  under,  661- 
670, 844 

To  use  party- wall,  666 

To  occupy  streets  not  a  franchise,  796 

Railroad  right  of  way  acquired  by,  661-670, 
740 

Of  purchaser  to  enter  and  take,  667 

By  grantor  to  adjoining  owner  is  not  suffi- 
cient to  establish  boundary,  503 

LIFE   ESTATE: 

Defined  and  described,  16 

Divided  into  two  classes,  16 

May  be  created  in  personal  property,  16 

LIGHT   AND   AIR: 

(See  also  EASEMENT  ;  GEANTS  ;  PEESCBIP- 

TION.) 
Easements  of,  307 


LIGHT  AND  AIR— Continued. 
Instances  of  interference  with,  302 
Interfered  with  by  boundary  walls,  308 
Obstructed  and  polluted,  301 
Free,  uninterrupted  use  incident  to  land, 

301 

Adverse  possession  of  part  of  it,  307 
Prescriptive  right  to,  326 
Rights  to,  surrendered  to  adjoining  owner, 
o07 

LIMITATIONS  : 

(See  also  ADVEESE  POSSESSION  ;  ACQUIES- 
CENCE; USEE;  PEESCBIPTION.) 
Right  to  be  let  alone  in  q»uiet  possession. 

511 

Title  established  by,  521 
Distinguished  from  prescription,  673 
Applied  to  prescription,  672,  673 
Presumptions  under  the  statute  of,  688 
Statute  of,  gives  title  under  adverse  pos- 
session, 534 

Laud  held  under  mistake,  517 
Disabilities  that  prevent  the  running  of 

the  statute,  688 

Begins  to  operate  as    soon  as  first  dis- 
ability is  removed,  688 

LINE: 

(See  also  BOUNDAEY-LINE  ;  DESCEIPTION  j 

SUEVEY.) 

Definitely  described,  366 

Run  not  always  line  described,  363 

Perpendicular  to  shore  or  bank,  383,  387- 

390 
How  joined  with  monuments  on  streams, 

387-390 

Described  with  reference  to  street,  452 
Of  a  street  not  changed  by  alterations,  445 
Of  pipe  in  streets,  841-860 

LINEAR   DISTANCES: 

"  More  or  less  "  applied  to,  595 

LINE-TREES  : 

Defined  and  described,  312 
Liability  for  destruction  of,  314 
And  fruit  the  common  property  of  adjoin- 
ing owners,  312 

LOCAL   AUTHORITIES  : 

Consent  of,  to  occupy  street,  846 

LOCATION  : 

(See  also  EASEMENT  ;  RIGHT  OF  WAT.) 
Defined  and  described,  752,  754 
Of  boundary  in  description,  366 
Of  boundary  is  conclusive,  when,  492 
Of  land  not  designated  in  deed,  559 
Of  street  railway  fixed  by  statute,  794 
And  maintenance  of  cemeteries,  267 
Of  Steam  Railroad : 

Right  of  way,  734-747 

Property  in,  754 

Secured  by  subscriptions,  748 

Prior,  prevails,  751 

When  only  one  can  be  made,  751 

Before  company  was  incorporated,  751 

Completed  by  acts  of  directors,  754 

Right  of,  misused,  754 

Effect  of  change  in,  748 

Changes  in,  limited  to  necessities,  750 

Change  in,  of  right  of  way,  716 


INDEX. 


6i5 


References  are  to  sections. 


LOSS: 

Of  lateral  support,  recovery  for,  330 

Of  land  by  erosion  or  submergence,  371-390 

LOTS: 

(See     also     BOUNDABIES;     HOUSE-LOTS; 

LANDS.  ) 

Lateral  support  for,  321-335 
Bordering  a  stream  which  shifted,  378 
"  Upon  bank  "  of  stream  includes  riparian 

rights  of  grantor,  406 
An  island  joined  to  it  by  accretion,  378 
Bounded  by  margin  of  a  street  held  to  be 

fixed  and  permanent,  445 
Evidence  that  all  were  same  width,  550 

LOT  NUMBERS: 

Description  by,  598 
Mistake  in,  549,  552 
In  conflict  with  other  parts  of  description, 

550 

Conveyance  by,  and  acreage  wrong,  590 
Reference  to  map  for,  613 

LOT-OWNER  : 

May  grade  it  and  prevent  surface-water,  187 
Attach  conditions  to  consent    to    occupa- 
tion of  street,  788 
Action  by,  for  obstruction  of  street,  441 

LOWLANDS : 

Subdivision  of,  that  are  reclaimed,  383-390 

LOW- WATER  MARK: 

Defined,  374 

Of  lakes  and  ponds,  421-430 

Is    boundary-line    of    navigable    streams, 

where,  401 
Bights  of  the  owners  extend  to,  when,  383 

LUMBER : 

Piling  of,  in  street  is  a  nuisance,  306 

MAGNETIC  BEARING : 

(See  also  AZIMUTHS  ;  BEARINGS  ;  COMPASS  ; 

COURSES;  SURVEYS.) 
Or  meridian  bearings,  604 
Mistakes  in  recording,  541-570 

MAGNETIC  VARIATION : 

Judicial  notice  of,  561 

Error  in,  not  to  be  corrected,  577 

MAP  OR  PLAT  : 

(See  also  BOUNDARY;  DEED;  DESCRIPTION; 
SURVEY.) 

Official  and  otherwise,  624 

Admissible  as  evidence,  542 

Copies  of,  as  evidence,  616 

Reference  to,  in  a  description,  455,  549 

Reference  to  official,  410 

Referred  to  for  lot  numbers,  598 

Description  saved  by  reference  to,  555 

Reference  to  two  maps,  555 

Referred  to  when  description  is  complete, 
614 

Treated  as  surplusage,  555 

Monuments  designated  on,  599 

Boundaries  on,  against  monuments  on  land, 
573 

Controlled  by  monuments  located,  574 

Against  field-notes,  600 

Sufficient  for  registration,  when,  752 

Used  to  fix  origin,  date,  limits  of  posses- 
sion, 526 


MAP  OR  Pi  AT -Continued. 
Use  of  scale  on,  560 

Of  an  estate  or  town-site  should  be  review- 
ed and  revised,  454 
Effect  of  garnishment,  454,  703,  709 
Describing  location  of  railroad,  752 
Of  railroad  route  is  a  nullity,  when,  752 

"  MARGIN  OF  THE    LAKE  "  : 

Described,  423 

MARK: 

See  HIGH- WATER  and  Low- WATER  MARK, 
374. 

MARRIED  WOMAN : 

Her  disability  under  law  of  limitations,  688 
Her  possession  and  that  of  her  husband,  516 

MAINS  : 

See  PIPE-LINES  ;  SUBWAYS. 

MEANDERED   LINE: 

Defined,  408-410 

Import  of  words  in  a  description,  408-410 

Run  by  government  surveyors,  410 

Not  always  to  determine  boundaries,  410 

Determines  sinuosities  of  stream  or  body 

of  water,  410 

Follows  stream,  when,  408-410 
Description  by,  discarded,  when,  409,  410 
Title  to  land  within,  414 

MEANING : 

"  More  or  less  "  in  a  deed,  591 

Of  words  "  northerly,"  etc.,  603,  604= 

Of  parties  to  a  deed  controls,  542 

MEASUREMENTS  : 

To  and  from  objects,  605-607 

To  or  from  a  stream,  606 

To  a  road  or  way,  606 

To  a  building,  605 

To  adjoining  tracts  or  structures,  607 

When  seashore  is  indented,  236 

Custom  of  surveyors  in  making,  605-607 

Custom  to  overrun,  597 

Of  lines  against  angles,  586 

Of  water  for  irrigation,  75 

Of  ditch  is  for  the  court,  75 

MEASURE  OF  DAMAGES  : 

For  lateral  support  destroyed,  330 

For  use  of  street  for  telegraph  lines,  816 

For  injury  to  vested  rights  by  electricity, 

295 
To  abutting  property   by  construction  of 

railroad,  721 

To  abutting  owner  for  obstructing  way,  762 
For  destruction  of  trees,  320 
When    gravel  washes    down   on    person's 

land,  193 

For  injuries  by  washing  of  soil,  138 
For  cutting  and  taking  ice,  169 
For  destroying  ice-field,  169 
For  diversion  of  stream,  111 
For  diversion  of  surface-waters,  194 
Due  to  surface-waters,  193 
For  crops  destroyed  by  surface-waters,  193 
For  deflection  of  waters,  138 
When  an  overflow  is  caused  by  a  structure, 

194 

-    For  water-right  destroyed,  223 
For  pollution  of  waters,  223 
From  defective  subways,  850 


INDEX. 


References  are  to  sections. 


MERGER  OF  ESTATES: 

Easement  extinguished  by,  645 

MERIDIANS  : 

True  or  magnetic,  604 
Omitted  in  a  deed,  546 

METALS  : 

See  LAND  ;  MINING  ;  MINERALS. 

METES   AND   BOUNDS: 

(See  also  BOUNDARIES  ;  COURSES  AND 
DISTANCES  ;  DESCRIPTION;  MONUMENTS  ; 
SURVEYS.) 

Description  by,  corrected  by  general  ref- 
erence, 549 

"  More  or  less,"  when  land  is  described  by. 
593 

MIDDLE   LINE: 

Of  a  stream  described,  409-420 

How  connected  with  monuments  on  shore 

387-390 
Trouble  to  determine,  411 

MILL-OWNER  : 

Whose  right  is  infringed,  63,  102 
Has  cause  of  action  for  interrupting  natu- 
ral flow  of  stream,  85 
Having    subordinate    right    may    reduce 

water,  when,  63 

May  prevent  restoration  of  stream  to  origi- 
nal channel,  when,  107 
Rights  of,  not  changed  by  change  in  site, 

75 

Protected  against  unreasonable  use,  84 
Must  not  be  deprived  of  water  by  taking 

ice,  166 

May  not  let  water  run  to  waste,  84 
Must  not  overflow  others'  lands,  85 
Cannot  recover  damages  from  logs  to  dam, 
89 

MILL-RIGHTS  : 

In  a  stream,  81-100 
Determined  by  size  of  stream,  84 
Infringed  upon  by  opposite  owner,  102 
Passes  by  transfer  of  mill  property,  77 
To  allow  water  to  run  to  prevent  freezing, 

o4: 

Water  shut  off  to  repair  culvert,  116 
Acquired  by  prescription  limited,  681 
MILLS : 

Detention  of  waters  for,  81-100 
Built  under  a  mere  license,  662 
Chemicals  a  source  of  pollution,  216 
Injured  by  canal  leakage,  272 
Millstone  detached  is  a  fixture,  7 

MINERALS: 

Ownership  of,  286 
Gas  and  oil  are,  283 

Landowner's  rights  in,  will  be  protected,  286 
Right  of  owner  of  mineral  land  to  take 
away,  284 

MINER'S  INCH : 

Defined  and  described,  75 
MINES  : 

Conveyance  of,  283 

Right  to  work,  up  to  limit  of  one's  own 

lands,  334 

Support  for  ground-surface,  334 
Adverse  possession  may  be  acquired  of, 


MINE  S—  Continued. 
Possession  of,  not  a  possession  of  surface, 

527 
Owner  of,  may  pump  water  into  a  stream, 

Refuse  from,  carried  upon  others'  land,  217 

MINISTERIAL  ACTS  : 

May  be  delegated,  477 

MISPLACED : 

Monuments  relocated,  when,  577-580 

MISSISSIPPI  RIVER  : 

Land  described  on,  409 

Laws  of  accretion  applied  to,  377,  431 

MISTAKES : 

In  a  description,  517,  541,  557,  570,  633 
In  boundary  acquiesced  in,  504 
In  stating  quantity  of  land,  588-590 
In  spelling  and  grammar,  562 
Possession  under,  is  adverse,  517 
Not  to  be  c6rrected,  when,  574 

MONOPOLY : 

Right  to,  a  franchise,  867 
Some  lawfully  granted,  869 
Of  streets  for  subways,  843,  848 
Of  street  railway  of  its  tracks,  785 
MONUMENTS : 

(See  also  ARTIFICIAL,  AND  NATURAL  MONU- 
MENTS ;     BOUNDARIES  ;     STAKES     AND 
STONES;  SURVEYS.) 
Boundaries  defined  by,  366 
Description  by,  holds,  when,  449 
What  they  include,  369 
What  is  an  ideal,  370 
Expense  of  erecting  permanent,  366 
Natural  features  as,  401 
Mountains,  hills,  hedges,  and  trees  as,  369 
Water  described  as,  371-420 
Roads,  streams,  and  ways,  582 
Streets  or  non-navigable  streams  as,  449 
Not  found  in  streets,  449 
Fences  as  such,  581 
Adjoiners  as,  583-585 
Designated  on  map  and  on  land,  599 
On  ground  against  those  on  map,  573 
Wrongly  described,  551 
Control  all  other  parts  of  a  description, 

571-585 

Control  courses  and  distances,  557 
Original,  control  in  government  surveys, 

579 

Natural  vs.  artificial,  370 
Selection  'of  artificial,  370 
Two  named  for  same  corner,  582 
Measurements  to  and  from,  605-607 
Must  be  identified,  576 
Evidence  to  identify,  580,  617-640 
When  they  cannot  be  found,  573,  580 
Lost  or  destroyed,  577-580 
When  destroyed  to  be  relocated,  578 
Relocation  of,  destroyed,  370 
Burden  of  proving  displacement,  577 
Removal  of    not  a  breach  of  arbitration 

bond,  463 

Opinions  as  to  location  of,  627,  628 
Location  shown  by  parol  evidence,  542 
Center  of,  should  be  boundary,  402 
Of  abuttal  is  thread  of  road,  way,  or  stream, 

447 


INDEX. 


617 


'References  are  to  sections. 


MONUMENTS—  Continued. 

On  shore  joined  with  inaccessible  lines  and 

points,  383,  387-390 
Parties  bound  by,  erected  before  deed  was 

made,  499 

MORE  OR  LESS  : 

Meaning  of  words,  591-597 

A  little  more  or  less,  595 

In  a  description  of  land,  588-597 

In  linear  distances,  595 

In  trade  or  commerce,  596 

MORTGAGE : 

Of  franchises,  874-878 

MORTGAGOR  : 

Entitled  to  buildings  on  premises,  when,  8 
Cannot  make  good  dedication  as  against 
mortgagee,  704 

MOUNDS  : 

Evidence  of  monuments,  580 

MOUNTAIN  : 

Used  as  a  monument,  369 
MOUTH  : 

Of  a  stream,  406 
MUNICIPALITY  : 

See  CITY  j  COKPOEATION  ;  FRANCHISE. 

MUNICIPAL  AID  : 

A  franchise,  when,  866 

NAME  : 

Land  described  by  familiar  name,  554 

NATURAL  GAS  : 

See  GAS  AND  OIL. 

NAVIGABILITY  : 

Does  not  depend  upon  improvements,  233 
In  fact  forms  navigability  in  law,  231 
Bules  in  different  states,  234 
Of  stream  depends  upon  what,  232,  233 
Of  water  is  question  for  jury,  234 
Existence  of  current  is  not  the  test,  234 

NAVIGABLE  STREAMS: 

(See     also     BOUNDARIES  ;     EASEMENTS; 

STREAMS;  WATERS.) 
Uses  of,  232 

Controlled  by  government,  375 
Improvement  in.  affects  property  owner, 

245 
Must  not  be  obstructed  by  pipes  and  cables, 

242 

Public  entitle  to  free  use  of,  121,  168 
Inland,  are  public  property,  238 
Lands  submerged  in,  used  by  city,  241 
Public  may  moor  vessels  in,  for  repairs,  244 
Frozen,  are  public  highways,  168 
Bight  to  take  ice  subject  of  statute  law,  164 
The  Niagara  is,  234 

NAVIGABLE  WATERS: 

Defined,  231,  236,  431 

Bules  governing  the  use  of,  245 

Controlled  by  state,  239,  241 

Interstate,  controlled  by  Federal  Govern- 
ment, when,  239,  241 

Bight  to  improve,  subject  to  government 
regulation,  245 

At  common  law,  164 

Divided  into  two  classes,  236 

Banks  and  shores  of,  and  their  use,  244 

Ob  struction  of,  242 


NAVIGABLE  WATERS— Continued. 
To  float  boats,  logs,  etc.,  loose  not  a  crime, 

243 

Marsh-land  not  a  part  of,  when,  234 
Flocculent  matter  discharged  into,  a  nui- 
sance, 218 

Telegraph  lines  across,  824 
Cables  stretched  across  must  not  obstruct 

boats,  242 

Public  and  private  rights  in,  231-245 
Are  public  highways  of  common  right,  231 
Public  may  anchor  on  shores  of,  244 
NAVIGATION  : 
Line  of,  defined,  how,  381 
Not  created,  when,  232 
Franchises  held  for  uses  of  public,  376 
Improvement    of,   superior    to    individual 

rights,  241 

Paramount  to  all  other  rights,  240 
Seasons  of,  must  occur  regularly,  232,  243 
Openings  in  the  clear,  121 
On  stream  should  be  valuable,  232 
Waters  need  not  be  fit  for  at  all  times,  232, 

243 
Obstruction  of: 

Congress  may  remove,  242 

By  riparian  owner's  jetty,  242 

By  bridge,  116 

By  embankment  in  public  river,  242 

By  sewage,  242 

Criminal  only  when  permanent,  243 

NEGLIGENCE  : 

May  fix  liability,  269 

An  element  in  determining  liability  for 
fouling  underground  waters,  267 

In  care  of  subways  849 

In  construction  of  water-works,  144 

In  erecting  telegraph  lines,  826 

In  laying  and  maintaining  pipes,  144 

To  take  precaution  to  prevent  contact  of 
wires,  296 

To  permit  branches  to  overhang  a  neigh- 
bor's land,  316 

To  accumulate  waters  under  pressure,  274 

To  carry  lighted  lantern  near  escaping  gas, 
284  ' 

To  leave  projections  in  street  above  grade, 
145 

NEIGHBOR : 

View  and  light  obstructed  by  fence,  341 
NEW  CHANNEL: 

Caused  by  sudden  floods,  107 

Stream  diverted  into,  105 

Care  must  be  taken  in  making,  105 

Fixed  by  prescription,  107 
NON-NAVIGABLE  STREAM: 

(See  also  NAVIGABLE  STREAMS  ;  STREAMS  ; 
WATERS.) 

Legislature  may  not  declare  it  a  public 
highway,  233,  241 

Called  for  as  a  boundary  or  monument,  449 

Used  by  public  to  float  logs,  243 
NON-USER : 

Easement  lost  by,  650 

Of  right  dedicated,  707 

Of  land  dedicated  to  public,  707 

Of  a  right  of  way,  650 
NORTH : 

Meaning  of  word,  603,  604 

And  along  a  stream,  408 


6i8 


INDEX. 


References  are  to  sections. 


NOTICE  : 

Of  appropriation  of  water,  75 

Duly  posted,  not  affected  by  second  notice, 
75 

Of  excavation  should  be  given  to  neigh- 
bor, 328 

Owner  must  have,  of  adverse  use,  528 

NUISANCE  : 

(See  also  PUBLIC  AND  PRIVATE  NUISANCE.) 
Acts  that  create,  306 
Public  and  private,  303 
Public,  restrained  by  public  authority,  797 
Unauthorized  use  of  street,  797 
Bridge    unlawfully    built    over    navigable 

stream,  240 

Unauthorized  diversion  of  stream,  101 
Bulkhead  causing  diversion  of  waters,  109 
Pollution  of  water,  202-208 
Dam  causing  overflow,  112 
Water  made  muddy  by  construction,  218 
A  permanent  structure  for  a  private  use 

upon  street  is,  718 
Use  of  steam  in  street,  799 
Steam -rail road  in  street,  756 
Unauthorized  erection  of  wall,  797 
Obstruction  of  street  is,  306 
Departure  from  authorized  route  of  street 

railway,  794 

Occupation  of  street  by  railroad,  757 
Bailroad  structure  is,  when,  117,  121,  764 
Deposits    of    materials    which   constitute 

railroad  embankment,  218 
Snow  from  roof  into  street,  182 
Projecting  eaves,  181 
Electric-light  pole,  826 
Telegraph  pole  may  be,  812 
Electricity  is,   when  it  causes    public  to 

suffer,  292 
That  which  deprives  landowner  from  light 

and  air  is  a  nuisance,  301 
Lawful  business  creating  smoke,  301 
A  manufacturing  plant  is,  when,  302 
Odors  from  gas-works,  305 
Carrying  on  of  an  offensive  trade,  307 
Maintenance  of  excessive  heat  is,  302 
Trees  overhanging  public  way,  318 
To  permit  branches  to  overhang  a  neigh- 
bor's land,  316 
Notice  of  should  be  given  and  a  demand  to 

stop  it,  316 

Private,  right  to  abate  it,  316 
May  be  abated  by  person  injured,  316 
Abatement  of  by  omission  justified,  when, 

316 

In  abating  it,  care  should  be  taken,  316 
Business  merely  impairing  rental  value  of 

property  is  not,  301 

That  which  law  authorizes  cannot  be,  721 
Created    by    erection     of     structure    by 

grantor,  306 
Excused  by  prescription,  671-700 

OBJECTS  : 

Measurements  to  and  from,  605-607 

OBLIGATIONS  : 

(See  also  CONDITIONS  ;  CONTRACTS  ;  DEEDS  ; 

RIGHTS  or  WAY.) 

Incident  to  right  of  way  by  condemnation, 
733 

To  keep  street  unobstructed,  783 


OBSTRUCTIONS  : 

During  adverse  user,  676-680 

To  adverse  use,  period  of,  680 

Of  waters  of  streams,  81-100,  112 

Of  stream,  whether  lawful  or  not,  jury  de- 
cides, 116 

Of  stream  during  erection  of  structure,  116 

In  streams  used  for  floating  logs,  243 

Of  surface-waters,  175,  177,  191 

Of  navigable  waters,  242 

Of  navigation  is  criminal  only  when  ob- 
structions are  permanent,  243 

Of  drainage  an  actionable  wrong,  191 

Of  outlet  to  pond,  103 

Of  light,  air,  and  view,  301,  341 

OCCUPANT : 

Special  and  general,  defined,  32 
Of  land  under  adverse  possession,  511-540, 
671-700 

OCCUPATION  : 

(See    also    ACQUIESCENCE  ;    POSSESSION  : 

USE.) 

Land  acquired  by,  32,  372 
No  particular  time  for,  after  agreement  as 

to  boundary,  500 
By  license  is  not  acquiescence  or  proof  of 

agreement  as  to  boundary,  503 
Is  a  taking  when  it  interferes  with  owner's 

use,  353 

ODORS  : 

See  LIGHT  AND  AIR  ;  NUISANCES  ;  SMELLS  ; 
VAPORS. 

OFFICE  GRANT: 

Defined,  33 

OFFICIALS  : 

City  not  liable  for  acts  of,  441 
Liability  for  trespass  of,  352 

OIL: 

See  GAS  AND  OIL. 
OLD  CHANNEL: 

Return  of  stream  to,  133 

OMISSIONS  : 

In  a  description,  550 

From  a  description  in  a  deed,  546 

Supplied  in  deed,  552 

Of  parts  in  case  of  surplusage,  547 

"ON"  : 

In  a  description,  363,  406 

OPENINGS  : 

In  party-wall,  342 

OPERATIONS  : 

Object  of,  in  engineering,  1 

Engineering,  sometimes  require  destruction 
of  property,  1 

Not  considered  in  promoting  enterprises,  1 

Telegraph  line  necessary  to  that  of  a  rail- 
road, 818 

OPINIONS : 

As  evidence  of  boundaries,  627,  62-8 
Of  witnesses  as  to  cause  of  ice-jam,  85 

ORDINANCES  : 

To  prevent  smoke  nuisance,  304 
Declaring  dense  smoke  a  nuisance  are  un- 
constitutional, when,  304 
Prohibiting  erection  of  awnings,  etc.,  718 


INDEX. 
References  are  to  sections. 


619 


ORIGINAL  GRANTOR : 

Reversion  of  street  to,  456 

OVERHANGING  : 

Trees  and  shrubs,  315-320 
Wall  may  be  enjoined,  when,  336 
Wall  obstructing  light  and  air,  308 

OVERLAPPING  : 

Surveys,  which  prevails,  602 

OWNER : 

(See  also  ABUTTING  and  ADJOINING  OWN- 
ER ;  LANDOWNER  ;  RIPARIAN  OWNER.) 
Estates  of,  in  land,  11-30 
Rights  created  by  harbor-lines,  381 
Maintaining  encroaching  walls  is  guilty  of 

trespass,  336 
Not  justified  in  killing  to  prevent  trespass, 

351 
Each  has  proportionate  share  in  new-made 

land,  388 
May  establish  boundaries  by  possession, 

368 

Must  have  notice  of  adverse  possession,  528 
Ignorance  of,  of  adverse  use,  528 
Illegal  resistance  to  molest  a  surveyor  act- 
ing under  a  court's  order,  352 
Depth  to  which  he  may  excavate  is  deter- 
mined, how,  324 
Of  an  easement  in  water  has  no  right  to  the 

ice,  164 
Of  house  to  pay  water-tax,  instead  of  tenant, 

150 
Of   flat  lands  may  protect  himself   from 

overflow,  136 

Of  land  submerged  and  reappearing,  380 
Of  artificial  mill-pond  entitled  to  water  and 
'    ice,  166 

Of  irrigated  lands  not  entitled  to  seepage,  75 
Of  railroad  right  of  way  may  protect  it  from 

surface-water,  136 

Of  reservoir  guilty  of  trespass,  when,  274 
Of  river-bed  not  liable  for  damages  caused 

by  overflow,  144 

Is  entitled  to  damages  for  eaves-drip,  181 
Of  swamps  may  build  canals  to  drain  them, 

184 

Of  water  and  ice  of  stream  are  the  same,  167 
Of  water  liable  for  unnecessary  detention,  81 
Of  works  fouling  stream,  is  liable,  201 
Of  land  formed  by  slow  degrees,  372 
Of  accretion  created  artificially,  382 
Of  accretions  upon  lakes,  381 
Liable  for  injuries  from  his  roof,  181,  183 
Of    building  which  discharges  roof-water 

against  another's  wall,  181 
Of  building  must  provide  it  with  proper 

eaves-troughs,  181 
Of    buildings    protected    against   injuries 

from  excavations,  324 

Of  a  dam  in  a  stream,  his  rights  and  lia- 
bilities, 85-90 
Overflow  caused   by  growth  of   grass  in 

dam,  90 

Liable  for  overflow  of  another's  land,  85 
Is  liable  if  dam  becomes  choked  with  ice,  88 
Is  liable  if  dam  obstructs  stream  unlaw- 
fully, 90 

OWNERSHIP  : 

Possession  under  claim  of,  is  adverse,  314 
Of  property  is  not  absolute,  2 


OWNERSHIP—  Continued. 
Of  land  determined  by  arbitration,  when. 

462 

Of  overlapping  claims,  532 
Of  minerals  and  metals  in  land,  286 
Of  oil  and  gas  in  land,  281-290 
Of  streets  and  highways,  441-446 
Of  whole  street,  when,  443 
Of  streets  when  exclusively  in  city,  781 
Of  railroad  right  of  way,  255,  732 
Of  trees,  if  a  tenancy  in  common,  314 
Of  trees  growing  near  boundary-line,  313 
Of  tree  whose  trunk  is  cut  by  dividing-liae, 

312 

Of  roads  bordering  navigable  streams  379 
Of  islands,  431 
Of  lands  re-formed  upon  site  washed  away, 

Of  the  soil  under  water,  238 

Of   shores,   bed,   or   bottom    of    streams, 

377-379,  401-420,  431 
Of  non-tidal  navigable  rivers,  238 
Of  lands  bordering  upon  navigable  streams, 

Of  navigable  waters  limited  to  high-water 

mark,  164 
To  middle  of  navigable  river  subordinate 

to  easement  of  navigation,  238 

OVERFLOW  : 

Of  land,  protection  against,  131-140 
Of  flooded  lands,  how  regarded,  136 
Of  surface-water   rendering  premises  un- 
wholesome, 193 

PAPER   TITLE  : 

Testimony  of  old  inhabitants  against,  621 

PARCEL : 

Means  "  portion,"  554a 

PAROL  AGREEMENTS  : 

To  settle  disputed  boundaries,  496 
May  give  color  of  title,  533 

PAROL  EVIDENCE  : 

Is  admissible,  when,  542 

To  explain  description  in  a  deed,  541-570 

To  explain  ambiguity  in  a  description,  553 

To  identify  tract,  553 

Of  what  belonged  to  grantor,  552 

Of  intention  of  parties,  558,  572 

To  show  a  warranty  of  quantity,  589 

Of  maps  referred  to  in  a  description,  613- 

618 
Cannot  prove  title  to  land  by,  495 

PART: 

Described  in  terms  of  whole,  554a 

PARTIES  : 

(See  also  ARBITRATION  ;  DEED  ;  SUIT.) 
Encouraged  to  settle  disputes  among  them- 
selves, 491 

Intention  of,  will  prevail,  450,  572 
Intention  of,  explained  by  parol  evidence, 

541-570 
To  an  arbitration  must  be  heard  in  presence 

of  each  other,  481 
Notified  of  hearing  before  arbitrator,  481 

PARTICULAR  : 

Particular  description  vs.  general,  548,  549 


620 


INDEX. 


References  are  to  sections. 


PARTNERSHIP  : 

Interest  in  real  property,  35 

PARTY- WALL  : 

(See  also  ABUTTING  and  ADJOINING  OWN- 
ER; LATERAL-SUPPORT  WALL.) 
Described,  337 
Easoment  acquired  in,  644 
By  license  merely,  666 
May  be  built  higher,  when,  340 
Windows  cannot  be  placed  in,  342 
Overhanging  neighbor's  lot,  308 
Agreements  in  regard  to,  343 

PATENT  : 

(See  also  GRANT;  DEED;    DESCRIPTION; 

SURVEY.) 

Ambiguity  in  a  deed,  542 
From  state  conveys  land  to  section-line,  410 
Of  U.  S.  includes  land  under  water,  when, 

414 

PATENTEE : 

(Of  land ;  see  GRANTEE.) 

PERCOLATING  WATERS  : 

(See  also  GAS  AND  OIL;  SUBTERRANEAN 
and  UNDERGROUND  WATERS  ;  WATERS.) 
Defined,  252 

Distinguished  from  surface  currents,  253 
Are  part  of  tiie  earth,  252 
Of  a  stream  or  spring,  110 
Oil  and  gas  compared  to,  281 
Artificial  or  enforced,  272 
Of  well  takei.  by  city,  255 
Law  recognizes  no  correlative  right  in,  252 
Prevented  from  going  into  neighbor's  well, 

254 

Belong  to  landowner,  252,  272 
May  be  intercepted  by  landowner,  252 
May  be  drained  from  neighbor's  laud,  254 
Bight  of  landowner  to  divert,  254 
Collected  into  stream  by  landowner,  254 
Of  sewage  into  cellars,  267 

FERK>D  : 

Of  existence  of  corporation,  879-883 

Of  acquiescence  to  establish  boundary,  501 

PERIOD   OF   LIMITATIONS  : 

(See  ADVERSE  POSSESSION  ;  LIMITATIONS  ; 
PRESCRIPTION.) 

PERSONAL  PROPERTY: 

Includes  what,  6 
Identified  with  real  property,  6 
Wrongfully  annexed  to  realty,  8 
Of  builder  erecting  structure  with  land- 
owner's consent,  6 
A  building  blown  down  is  not,  8 
An  estate  for  life  may  be  created  in,  16 
A  testamentary  disposition  of,  is  a  legacy, 

OO  * 

PETROLEUM  : 

(See  GAS  AND  OIL  ;  PERCOLATING  WATERS.) 

PHRASES   AND    CLAUSES  : 

In  a  description,  406-410,  447-452 ' 

PIPE-LINES  : 

Property  in,  847 
Taxation  of,  847,  886 
Damages  from,  850 


PIPE-LINES—  Continued. 

Are  fixtures,  when,  847 

Temporary  removal  of,  846 

Easement  for  an  interest  in  land,  847 

For  conducting  water,  141-160 

Negligence  in  laying,  145 

Bight  to  lay  comes  from  whom,  841-860 

Bights  of  way  in,  841-860 

In  streets,  without  consent,  843-845 

Monopoly  for  in  streets,  843 

PLAN,  PLAT,  OR   PLOT  : 

(See  FIELD-NOTES  ;  MAP  ;  SURVEY.) 

POINTS   OF   COMPASS: 

(See  also  BEARINGS;  COURSES  AND  DIS- 
TANCES; NORTH.) 
How  described,  603,  604 

POLES : 

Telegraph  on  streets  and  ways,  811-840 

POLICE   POWER: 

Instances  of,  869 

Corporations  subject  to,  862,  871,  887 

Franchises  the  subject  of,  869 

POLLUTION    OF   WATERS  : 

(See  also  PERCOLATING-  AND  SURFACE- 
WATERS  ;  STREAMS  ;  WATERS  ;  WATER- 
SUPPLY.) 

Described,  202 

Of  streams  and  surface-water,  201-223 

Sources  of,  203 

Of  river  by  city  sewage,  207 

Of  stream  increased  with  growth  of  city 
212 

Of  stream  a  nuisance,  when,  202,  209 

Necessary  result  of  construction  of  sewer. 
215 

By  discharge  of  sewers,  204 

By  household  wastes,  267 

Of  stream  by  maintaining  stables,  208 

Of  watercourses  by  factories,  etc.,  216 

Of  streams  by  mining  operations,  217 

Of  stream  by  engineering  operations,  207 

By  gas-works,  264 

Of  underground  waters,  263 

Of  underground  waters,  amounting  to  nui- 
sance, 264 

By  oil  soaking  into  ground,  264 

Of  ground-waters,  prevented  by  injunction, 
270 

Degree  that  will  be  enjoined,  206 

Injunction  or  damages  may  be  had  for,  209 

Chemicals  are  source  of,  216 

By  refuse  from  sawmills  and  tanneries,  222 

By  refuse  from  gas-works,  221 

Measure  of  damages  for,  223 

Of  springs  may  be  recovered  for,  264 

Of  water-supply  of  a  city  is  a  nuisance,  212 

Of  water  may  be  enjoined  by  water  com- 
pany, 209 

Parties  to  suit,  to  prevent  it,  213 

Person  injured  not  required  to  prevent  it, 
220 

Caused  by  unavoidable  accident,  267 

Of  stream  by  joint  wrong-doers,  214 

Of  stream  denied  by  riparian  owner,  213 

Contributed  to,  by  plaintiff,  214 

Of  air,  301 


INDEX. 


621 


References  are  to  sections. 


PONDS : 

(See  also  LAKES  AND  PONDS  ;  MILL-PONDS  ; 

STREAMS  ;  WATERS.) 
Prescriptive  rights  acquired  in,  681 
Drainage  of,  179 
Of    surface-waters    may    not    be   drained, 

where,  179 

Drained  into  watercourse,  179 
Obstruction  of  outlet,  103 
A  burden  to  land,  when,  179 

POSSESSION  : 

(See  also  ADVERSE  POSSESSION  ;  ADVERSE 

USE  :  PRESCRIPTION.) 
Elements  of,  to  be  adverse,  515-536,  500- 

502,  675-689 
Must  be  actual,  520 
Must  be  continuous,  529 
Under  claim  of  ownership  is  adverse,  514 
Interruption  of,  during  adverse  user,  676- 

680 

Under  a  mistake  may  be  adverse,  517 
Plat  or  survey  used  to  fix  origin,  date,  and 

limits  of,  526 
Is  a  species  of  title  and  may  become  perfect 

and  indefeasible,  511-540,  514 
Of  land  not  necessarily  possession  of  gas, 

282 
Of  mining  claim  same  as  to  acquire  title  to 

land,  527 

Of  squatter  will  give  him  a  right  to  dam- 
ages, 85 
Required    to    establish    boundary,    under 

agreement  and  acquiescence,  501 
By  successive  occupants  taken  together  to 

make  prescriptive  period,  686,  687 

POST-ROADS  : 

Eailroads  are,  821 

POWERS  : 

Of  corporations  limited,  861-863 

Of  corporation  to  acquire  and  dispose  of 

real  estate,  36 
Of  corporations  to  take  property  by  devise, 

QU 

Conferred  by  legislature  upon  water  com- 
panies, 141-143 
To  construct  water- works,  authorizes  what, 

142 
To  supply  water  delegated  by  legislature, 

146 

Of  water  company  to  fix  rents  for  water,  151 
Of  city  to  provide  water-works,  when,  141 
Of  city  to  provide  for  maintenance  of  fire- 
engines,  142 

To  mortgage  restricted  in  some  states,  36 
To  provide  expenses  of  town    authorizes 

what,  142 

Of  a  railroad  to  purchase  land,  733 
Of  surveyor  as  arbritrator  restricted,  472 

PRELIMINARY  SURVEYS  : 

Trespass  on  land  in  making,  351-360 

PREMISES  : 

(See  also  LAND;  DEED;  DESCRIPTION.) 
Bounded  by  line  of  street,  451 
Description  of,  in  a  lease,  19 
Surrendered  to  landlord,  78 


PRESCRIPTION  : 

(See  also  ADVERSE  USER  ;  ADVERSE  POSSES- 
SION; LIMITATIONS.) 
Denned,  32 

Subject  treated,  671-700 
Presumption  of  a  grant,  672-674 
In  acquiring  easements,  642 
Under  statute  of  limitations,  672,  673 
Importance  of,  in  construction  work,  671 
Positive  right  of  ownership,  acquired  by. 

511 
What  amounts  to    interruption    of    user, 

676-680 
There  must  be  privity  of  estate  between 

successive  holders,  686,  687 
What  is  privity  of  estate,  687 
Possession  of  several  holders  united,  when. 

686,  687 

PRESCRIPTIVE  RIGHTS  : 

(See    also      EASEMENTS;      INCORPOREAL 

BIGHTS;  BIGHTS  OF  WAY.) 
How  acquired,  671-680 
Limited  to  adverse  use,  681 
Character  of  user  to  acquire,  689 
Acquired  by  open,  adverse,  exclusive,  and 

continuous  use,  675-682 
Use  must  be  notorious,  528 
Burden  of  proof,  688 
Cannot  be  acquired,  when,  185 
Against  the  state  or  the  public,  534,  682-685 
Acquired  by  public,  683 
Impossible  to  apply  doctrine  of,  when,  326 
Of  grantor  belong  to  grantee,  686,  687 
Allowed  to  ripen  by  trustee,  516 
In  right  of  way  limited  to  adverse  user,  681 
Bight  of  way  not  acquired  by,  when,  716 
Bailroad  right  of  way  acquired  by,  535,  536, 

685,  738 

Shore  of  waters  may  be  acquired  by,  376 
Over  railways,  534-536,  684,  685    . 
Over  wild  and  unimproved  land,  683 
Acquired  by  riparian  owners,  107 
Not  given  to  person  diverting  water  by- 
acquiescence  of  riparian  owner,  107 
New  channel  fixed  by,  107 
To  drainage  of  surface-waters,  185 
To  cast  surface-water  upon  lower  land,  185 
Of  lower  owner  to  dam  surface-waters,  186 
To  maintain   nuisance    sustained  by  ad- 
verse user,  212 
To  empty  sewer  into    stream    supplying 

water  to  city  cannot  be  acquired,J.212 
To  pollute  stream  is  limited,  212 
In  underground  waters,  262 
Extra  support  not  the  basis  of,  326 
Does  not  entitle  one  to  excavate,  106 
Of  light  and  air,  307 

Servitude  of  light  and  air  through  win- 
dows acquired,  when,  341 
Disabilities   that  prevent  the  acquisition 
of,  688 

PRESUMPTION : 

That  fixtures  are  abandoned  may  be  re- 
butted, 8 

Of  grant  by  prescription,  671-674 
After  long-continued  possession,  674 
Of  abandonment  of  easement  from  non- 
user,  650 
That  survey  was  made  on  ground,  578,  580 


622 


INDEX. 


References  are  to  sections* 


PRESSURE  : 

Collecting  water  under,  274 

PRIOR    APPROPRIATION    OP 

WATER  : 

(See  also  APPROPRIATION  ;    IBBIGATION; 
RIPARIAN  OWNEES  ;  STREAMS  ;  WATERS.) 
History  of,  73-75 
In  arid  countries,  105 
Bight  acquired  by,  protected,  74 
Irrigation  rights  by,  73 
Date  and  amount  determined,  75 
Against  riparian  owner,  74* 
Use  must  be  limited,  73 
By  upper  owner,  to  exclusion  of  others,  74 
By  miners,  74,  75 
Gives  how  much,  75 
Bight  acquired  is  not  affected  by  place  of 

application,  75 

PRIOR  APPROPRIATOR  : 

Bights  acquired  by,  75 

Bights  of,  fixed  by  his  appropriation,  75 

Has  vested  right  to  use,  74 

Bights  of,  may  be  lost,  76 

Not  entitled  to  all  of  water,  75 

Cannot  claim  water  after  abandonment,  76 

May  not  use  water  to  injury  of  others,  75 

PRIOR   OCCUPATION: 

Of  right  of  way,  rights  attending,  827 
Of  streets  for  traffic,  784 
Of  street,  in  case  of  companies  holding 
franchises,  294 

PRIVATE    NUISANCE: 

(See  also  NUISANCE.) 
Is  ground  for  civil  proceedings,  303 
Generally  affects  enjoyment  of  immovable 

property,  303 
Gas  company  creating  unwholesome  odors 

etc.,  305 

Appropriation  of  waters  is,  when,  58 
Party  injured  may  bring  suit  to  abate  it, 

316 

PRIVATE   PROPERTY: 

(See   also    LANDS;    PROPERTY;    PUBLIC 

PROPERTY.) 

Must  not  be  injured  by  public  works,  190 
Taking  of,  for  public  use,  721 
May  be  taken  by  legislature  for  a  landing, 

Injured  by  accumulated  water  cast  upon  it, 

Must  not  be  interfered  with  in  improving 
navigable  waters,  241 

PRIVATE   STREETS  : 

(See  also  HIGHWAYS:  BOADS;  STREETS; 

WAYS.) 
Boundaries  on,  453 

PRIVITY  : 

What  is  privity  of  estate,  687 

PROFESSIONS  : 

Advice  of  legal  and  scientific,  361 

PROFIT-A-PRENDRE  : 

In  land,  641 

PROJECTIONS  : 

Upon  adjoining  land,  336 


PROOF : 

Of  boundaries,  611-640 

Of  agreement  as  to  boundary,  what  is  not 

503 
Of  starting-point,  630,  631 

PROPERTY : 

(See  also  LAND;  LANDOWNER;  PERSONAL 

and  REAL  ESTATE.) 
Beal  and  personal,  defined,  2,  3 
In  anything  is  not  absolute,  2 
First    essential  to  an  engineering  enter- 
prise, 1 

Destruction  of,  required  by  engineering  op- 
erations, 1 

Of  city  and  country  distinguished,  176 
Sold  on  condition  that  it  remain  personal 

property,  8 

Limitation  of  corporations,  873 
Described  in  general  by  boundaries,  361- 

370 

Boundary  necessary  to  indicate  limits,  522 
Description  of,  should  contain  what,  362 
Accurate  survey  of,  not  required,  when,  383 
Entry  and   destruction  of,   bv  survevors 

351  360 

Word  on  map  may  forfeit  man's  title  to,  454 
Used  for  other  than  dedication  purposes, 

May  not  be  held  through  agents,  34 

In  overhanging  fruit  of  trees,  315 

In  line-trees,  if  not  a  tenancy  in  common 

314 

In  streets  and  ways,  441-443 
Streets  under  control  of  government,  442 
In  location  of  a  railroad,  754 
Taken  by  railroad  in  its  right  of  way,  731 
Bights  incident  to,  on  streams,  403 
In  sea  and  its  shores,  375,  376 
In  beaches,  shores,  and  banks,  375,  376 
In  maritime  border  is  in  state,  375-378 
Between  levee  and  water  belongs  to  whom, 

In  land  made  by  filling,  371,  381, 390 
Submerged  by  sea  belongs  to  whom,  377- 

390 

In  streams  is  indivisible,  56 
Subject  to  injuries  from  sewers,  188 
In  ice  on  pond  or  canal,  167 
In  surface-waters,  174 
In  pipe-lines,  etc.,  847 
Failure  to  make  claim  or  pay  taxes  evidence 

of  abandonment,  523 

PROTECTION  : 

Of  lands  against  floods,  131-140 
Of  property  by  riparian  owner,  132 
Against  injuries  from  excavations,  324 

PROTESTS  : 

Not  sufficient  to  interrupt  adverse    user, 
677-680 

PUBLIC  : 

(See  also  CITY;  GOVERNMENT;  STATE.) 
Shores,  etc.,  held  by  sovereign  for  benefit 

of,  376 
May  acquire  right  of  way  by  adverse  user, 

683 

No  adverse  use  against,  534,  682-685 
May  acquire  prescriptive  rights,  683 
Prescriptive  rights  against,  534,  682,  685 


INDEX. 
References  are  to  sections. 


PUBLIC — Continued. 

Prescriptive  rights  by,  over  railways,  535, 
685,  686 

May  not  acquire  a  right  to  a  landing  by 
prescription,  244 

Has  no  general  rights  as  against  riparian 
owners,  244 

Benefiting  by  dedications,  702 

Trustee  for,  cannot  extinguish  use  of  dedi- 
cated property,  708 

Use  of  streets,  812-840 

Rights  of: 

To  free  use  of  navigable  river,  121,  168 
To  navigable  waters  is  paramount,  241 
Of  passage  over  all  streams,  240 
To  travel  on  ice,  168 
To  appropriate  ice,  168 
To  anchor  on  shores  of  navigable  waters, 

244 

Of  navigation  may  be  restricted,  245 
To  use  non-navigable  river  for  floating 

logs,  243 

To  bathe  in  sea,  237 
In  street  are  pre-eminent,  442 
To  use  every  part  of  pavement,  716 
In  land  by  dedication,  701-711 
To  use  only  part  of  dedicated  street,  716 
To  be  protected  from  monopolies,  861, 
867 

PUBLIC  CALAMITY: 

When  is  a  surveyor's  visit,  574 

PUBLIC  DUTIES  : 

Of  corporations,  861-887 

PUBLIC  HIGHWAY : 

Traveler  using  it  entitled  to  protection,  232 
Waters  capable  of  floating  logs,  232 
Ditch  constructed  across,  717 

PUBLIC  IMPROVEMENTS  : 

Franchises  for,  861-887 

PUBLIC  LANDS  : 

Bight  of  way  over,  for  telegraph,  820 
Conflict  between  field-notes  and  map,  600 
PUBLIC  NUISANCE: 

(See  also  NUISANCE.) 
Defined,  303 

Affect  community  at  large,  303 
Whether  acts  are,  depends  upon  locality,  303 
Does  not  always  create  civil  cause  of  action, 

303 
Actions     of     different     families    suffering 

should  be  several,  303 

Individual  maintaining  suit  to  abate  it,  303 
May  also  be  private,  303 

PUBLIC  PROPERTY : 

May  not  be  acquired  by  adverse  possession, 

534,  682-685 

Inland  navigable  rivers  are,  238 
PUBLIC  USE  : 

(See  also  USB,  and  topic  of  the  use.) 
PUBLIC  WAYS  : 
When  occupation  of,  may  be  authorized,  721 

PUBLIC  WORKS  : 

(See  also  CONSTRUCTION  WORK  ;  WORKS.) 
Municipal  aid  for,  566 
Must  not  injure  private  property,  190 
Springs  and  wells  drained  by,  255 


PUR  AUTRE  VIE: 

Estate  of,  defined,  16 

PURCHASER  : 

Adverse  possession  of,  516 

License  to  enter  and  take,  667 

Of  railroad  liable  for  injuries  to  abutting 

owner,  759 

Of  land  after  railroad  has  been  built,  763 
Of   unsafe    ditch     is    liable   for   injuries 

caused,  88 

QUANTITY  : 

Of  land  in  a  description,  588-597 
Representations  as  to,  of  land,  590 
"  More  or  less,"  591-596 
Variation  in  that  named,  592 

QUARRY : 

Adverse  possession  of,  527 
Owner  of,  not  liable  for  cost  of  pumping 
water,  when,  272 

RAILROAD  : 

(See  also  ELECTRIC  RAILWAY  ;  RIGHTS  OP 

WAY  ;  STREET  RAILWAY.) 
Franchise  of,  includes  what,  861-887 
Land  described  by,  544 
Above  or  below  ground  immaterial,  as  re- 
gards taxation,  5 
Benefits  to  land  from,  763 
Ownership  of,  444 
Terminals  of,  753 

Distinguished  from  street  railway,  798 
Location  of,  743-747 
Map  filed  is  sufficient,  when,  752 
Elements  to  determine  location  of,  744 
Discretion  must  be  used  in  locating  it,  745 
Route  not  fixed  by  charter,  745 
Are  post-roads,  821 
Bight  of  way,  731-765 
Bight  of  way  cultivated,  685 
Bight  of  way  along  a  river,  745 
Abandonment  forfeits  rights  of  way,  755 
Cannot   grant  exclusive  right  of  way  to 

telegraph  company,  821 
Ties    of,  wrongfully  annexed  to  right  of 

way,  8 

Use  of  tracks  for  storing  cars,  736 
Subsurface,  is  street  railroad,  787 
Structure  sustaining  it  is  land,  5 
Highway  laid  out  across,  751 
License  to  build  and  operate,  665 
Liability  for  obstructing  waters,  191 
Obstructing  and  diverting  surface-waters, 

lt/1 

Structure  deflecting  water,  137 
Prescriptive  rights  over,  534-536,  684,  685 
RAILROAD   COMPANY  : 

(See  also  CORPORATIONS  ;  FRANCHISES.) 

A  gwast-public  corporation,  744 

Grants  and  charters  of,  are  public  fran- 
chises, 731 

Its  failure  to  exercise  grant,  754 

Not  a  landowner,  255 

Its  track  is  land,  5 

Telegraph-wires  strung  on  its  poles  are 
land,  5 

Which  receives  donations,  748 

Owes  obligations  to  stockholders,  744 

Adverse  possession  by,  536 

Bight  by  location,  754 

Prior  location  prevails,  when,  751 


624 


INDEX. 


References  are  to  sections. 


RAILROAD  COMPANY—  Continued. 
Misusing  its  right  of  location,  754 
Authority  to  make  changes,  743 
Its  map  a  nullity,  when,  752 
Does  not  trespass  when  authorized  to  en- 
ter, 740 

Responds  for  injuries  done  by  surveyors,353 
Title  to  reclaimed  lands  not  a  fee,  424 
Upheaval  of  adjoining  lands,  334 
Erecting  depot  in  front  of  abutting  owner's 

land,  721 

Eights  of  abutting  owners  assigned  to,  759 
Must  not  obstruct  street,  783 
Failing  to  repair  street,  783 
Required  to  build  higher  bridge,  721 
Water-supply  of,  inferior  to  use  of  water 

for  mill,  81 

Failure  to  build  culvert  in  embankment,  192 
Must  keep  culverts  unobstructed,  119 
Right  of  Way  of  : 
Breach  of  contract  for,  736 
By  estoppel,  732 

Earth  from  one  part  used  on  another,  192 
Ornamental  trees  growing  in,  319 
Trees  need  not  be  removed  from,  742 
Surface-water  accumulating  on,  191 
For  negligent  construction,  192 
If  structure  is  a  nuisance,  117 
Compensation  for  telegraph  upon,  825 
Liability  of: 
For  wrongful  acts,  757,  758 
To  lot-owners  for  injuries,  721 
As  grantee,  not  liable  for  injuries  due  to 

structures  erected  by  grantor,  52 
For  injury  from  diverting  a  stream,  131 
For  injuries  from  overflow,  119,  136, 137 
For  obstructing  stream,  116 
Rights  of : 
Has  property  rights  of  natural  person, 

when,  732 

Over  its  right  of  way,  731 
To  enter  land  for  surveys,  755 
To  survey  line  of  proposed  road,  353 
To  locate  road,  745 
To  land  over  which  it  has  no  right  of 

way,  732 

To  abandon  right  of  way,  751,  754,  755 
To  clear  obstructions  from  right  of  way, 

742 
To  appropriate  grass  growing  on  its  right 

of  way,  444 

To  use  right  of  way  for  telegraph,  818 
To  grant  exclusive  right   to   telegraph 

company,  819 
Rights  to  accretions,  382 
To  occupy  street  without  city's  consent, 

721 

To  operate  its  road  by  license,  740 
To  construct  roads  across  streams,  113 
To  maintain  dam  on  right  of  way,  112 
To  render  stream  dry,  in  constructing  its 

road,  255 

To  remove  depot,  755 
To  transfer  cause  of  injury  to  another's 

land,  120 
To  reduce  volume  of  stream  by  diversion, 

102 
To  enjoin  water  company  from  taking 

water,  63 
To  divert  water  for  supply  of  locomotives, 

63 
To  dig  well  and  use  water,  255 


REAL  ESTATE  : 

(See  also  LAND  ;  PEOPEETY.) 

Defined,  3 

How  acquired,  31 

May  be  held  by  any  person,  34 

Person  who  has  an  interest  in,  is  a  bene- 
ficiary, when,  34 

Title-deeds  must'  be  in  writing  and  under 
seal,  469 

Partnership's  interest  in,  35 

Cannot  be  held  by  copartnership  firm,  35 

When  purchased  by  partnership,  title  is 
held  by  members,  35 

REALTY : 

Interest  of  corporation  in,  36 

Personal  property  wrongfully  annexed  to,  8 

Distributable  as  personal  property,  when, 

35 

Steam-engine  and  boiler  a  part,  when,  7 
Indispensable  articles  become  a  part  of,  7 

REASONABLE  CARE  : 

Must  be  exercised  by  riparian  owner  erect- 
ing a  barrier,  131 

REASONABLENESS : 

Of  water  rates,  how  determined,  150,  151 

REASONABLE  TIME  : 

In  which  to  complete  appropriation  of 
water,  75 

REASONABLE  USE  : 

(See    also   APPKOPBIATION ;    DIVERSION; 

RIPAEIAN    OWNERS;    STREAMS;     USE; 

WATERS.) 
Of  Waters: 

Defined  and  described,  71,  75 
Of  a  stream,  207 
How  determined,  59,  207 
Depends  upon  what,  71,  82 
Question  of  fact,  245 
Must  permit  natural  flow  of  stream,  84 
Will  not  permit  damming,  60 
Instances  of,  208 
By  manufacturers,  207 
For  stock  purposes,  208 

RECESSION  OF  WATERS  : 

(See   also   ACCRETION;    RELICTION;   RE- 
CLAIMED and  SUBMERGED  LANDS.) 
Land  uncovered  by,  belongs  to  whom,  432 
Boundary  will  follow,  377 

RECLAMATION  : 

Of  land  from  water,  371-400 

Does  not  interfere  with  use  of  waters,  382 

RECORDS : 

Copies  of,  as  evidence,  616 
Destroyed  or  lost,  543 

REFERENCE : 

(See   also    DEEDS  ;    DESCRIPTION  ;  MAP  ; 

PLAN  ;  PLAT.) 

To  map  or  plan  in  a  description,  454,  555 
To  old  deeds  in  description,  363 
To  official  plot,  410 

RELICTION  : 

(See   also  ACCRETION  ;    ALLUVION  ;    RE- 
CLAIMED LANDS.) 
Defined,  424 

Of  land  from  water,  371-400 
Boundaries  of  land  acquired  by,  363 


INDEX. 
References  are  to  sections. 


625 


REMAINDER : 

(See  also  ESTATES-TAIL  ;  KEVEKSION.) 
Vested  and  contingent,  defined,  24 
Vests  iu  remainderman  during  existence  of 

particular  estate,  24 
Of  particular  estate  passes  from  grantor, 

when,  24 

REMEDIES  : 

For  injury  to  lateral  support,  329 
-  Legislation  affecting,  870 
Against   corporations   to    enforce    public 
duties,  878 

RENT  : 

Defined,  29 

Classed  with  incorporeal  hereditaments,  29 

REPRESENTATIONS  : 

As  to  area  of  a  conveyance,  590 

RESERVATION  : 

In  a  deed  of  a  right  of  way,  711 

In  a  deed  of  an  easement  to  light  and  air, 

307 
Of  right  to  use  certain  drain,  719 

RESTRICTIONS  : 

Imposed  on  use  of  streets  for  telegraph 

lines,  813-840 
On  use  of  right  of  way,  736 

REVERSION : 

Not  in  grantor,  23 

May  be  assigned  or  devised,  23 

When  is  there  curtesy  or  dower  in,  23 
REVOCATION : 

Of  a  license,  what  constitutes,  661-670 

Of  license  estopped,  663 

Of  submission  to  arbitration  must  be  ex- 
press, positive,  and  absolute,  467 

Must  be  in  writing  if  agreement  for  arbi- 
tration be,  468 

Of  submission  to  arbitration,    what   will 
work  a,  468 

RIGHTS  : 

(See     also     EASEMENTS  ;     INCORPOREAL 

EIGHTS;  LAND;  PROPERTY  EIGHTS.) 
Legislature  may  not  destroy,  765 
Interference  with,  is  trespass,  351-355 
To  fixtures,  7,  8 
In  various  estates,  11-30 
Of  partnership  in  land,  35 
Of  a  corporation  in  land,  36 
In  accretion  depend  upon  what,  371-390 
In  line-trees,  311-320 
Of  riparian  owners,  51-63 
To  appropriate  waters,  51  63 
In  waters  for  irrigation,  71-77 
To  detain  waters,  81-90 
To  operate  mills  by  water,  81-90 
To  divert  waters,  101-121 
To  protect  land  from  streams,  131-138 
To  supply  of  water  and  ice,  141-169 
Of  water  companies,  141-169 
In  surface-waters,  171-195 
To  pollute  waters,  201-223 
In  navigable  waters,  231-245 
In  underground  waters,  251-275 
To  waters  of  wells  and   springs,  201-223, 

251-275 

To  gas  and  oil,  281-286 
Affected  by  electricity,  291-300 


RIGHTS— Continued. 
To  easement  of  light  and  air,  301-308 
Defined  by  boundary-lines,  311-343 
To  lateral  support,  311-343 
Of  surveyors  when  trespassers,  351-355 
To  reclaim  and  occupy  submerged  lands, 

731-390 

As  established  by  boundaries,  361-460 
Determined  by  arbitration,  46l"-490 
Determined    by    agreement    followed    by 

acquiescence.  491-505 
By  adverse  possession,  511-536 
Described  by  boundaries  construed,  541- 

562 

In  easements,  641-660 
By  license,  661-670 
By  prescription,  671-689 
By  dedication,  701-709 
Eights  of  way,  711-851 
Of  telegraph  and  telephone  companies,  291- 

296,  811-834 

Eailroad  company,  731-765 
In  public  streets  or  ways,  756-851 
Of  a  street-railway  company,  781-799 
In  subways,  841-851 
In  franchises,  861-890 
Vested,  may  not  be  impaired,  868-878 
Of  corporation  extinguished,  879-885 

RIGHTS   OF   WAY  : 

(See  also  EASEMENTS  ;  LOCATION  ;  Name 

of  company  using  way.) 
Land  essential  to,  1 
First  step  for  a  structure,  1 
In  general,  711-721 
Includes  what,  731 
How  acquired,  732-740 
Extent  and  mode  of  use,  651 
Of  railroad  secured  by  purchase,  733,  736 
On  condition,  735 
Of  definite  width,  716 
Control  of,  by  state  or  federal  government, 

873 

Change  of  location,  716 

Prior  location  and  occupation  of,  751,  827     , 
Not  fixed  by  charter,  745 
The  subject  of  a  grant,  712,  735 
Limited  to  uses  contemplated,  715 
Eestrictions  on  use  of,  736 
Grant  of,  for  ditch,  an  easement,  77 
Are  appurtenant  to  land,  when,  711,  714 
Not  extinguished  by  opening  of  another, 

716 

Interruption  of,  676-680 
Obstruction  of,  650,  676-680,  717,  742 
Encroachments  upon,  by  abutting  owners, 

684 

Encroached  upon  by  a  building,  717 
Lost  by  non-user,  650 
In  common  with  grantee  lost  by  grantor, 

when,  717 

By  necessity  over  land,  714,  715 
By  condemnation,  731,  737,  751 
By  estoppel,  not  given,  when,  732 
By  dedication  and  prescription,   535,  536, 

685,  738 

By  prescription  limited  to  use  during  pre- 
scriptive period,  681 
Over  railways  by  prescription,  534-536,  684, 

685 

Acquired  by  the  public  by  prescription,  683 
By  license  only,  661-670 


626 


INDEX. 


References  are  to  sections. 


RIGHTS  OF  WAY —Continued. 

Used  under  license  of  landowner,  716 
Across  navigable  waters,  824 
Of  telegraph  or  telephone  company,  811-840 
Of  telegraph  company  on  a  railroad  right  of 

way,  444 
Exclusive  rights  not  granted  to  telegraph 

company,  819 

In  conduits  and  pipes,  841-860 
Of  canal  in  a  public  stream,  4*44 
Of  street  railways,  781-800 
Of  railroad,  731-765 
Over  public  park  for  railroad,  786 
Abandonment  of,  of  railroad,  751,  755 
Ownership  of  abutting  owner  in  railroad, 

444 

RINGS  : 

Of  a  tree  or  stump  to  tell  age,  580 

RIPARIAN   OWNER: 

(See  also  BANKS  ;  BOUNDAEIES  ;  DESCRIP- 
TION ;  SHOEES ;  STREAMS  ;  SURVEYS  ; 
WATERS.) 

Defined  and  described,  51,  55,  378 

Appropriation  of  waters  by,  57,  60 

Against  prior  appropriator,  74 

Use  of  waters  by,  against  one  who  is  not,  61 

Kemedy  of,  for  wrongfully  taking  water,  220 

When  a  city  is,  it  may  take  water,  143 

Permitting  city  to  erect  works  for  water- 
supply  without  protest,  143 

Uses  to  which  he  may  apply  water  cannot 
be  foreseen,  219 

Need  not  own  fee  of  land,  52 

A    canal    company  owning    land    along  a 
stream  is,  51 

Loss  by  erosion,  371-379 

Lowlands,  how  divided  between,  383 

Not  compensated  for  injuries  incident  to 
navigation,  241 

State    may    make    improvements    without 
compensating,  413 

Improving  streams  unfit  for  floating  logs, 

233 
•    Injunction  to  prevent  fouling  of  stream,  219 

Failing  to  guard  against  injuries  from  pol- 
lution of  stream,  220 

Cannot  recover  from  upper  owner    if  he 
contributes  tp  pollution,  214 

Denying  that  he  polluted  stream,  213 

Must  take  stream   subject  to  diminution 
and  corruption,  when,  212 

Purchasing  land  after  nuisance  is  estab- 
lished, 213 

Rights  of : 

To  enjoy  waters  of  stream, .60,  71,  134, 201 
To  natural  flow  of  water  undiminished  in 

quantity  or  purity,  55,  57 
To  deal  with  stream,  134 
To  take  as  much  water  as  is  necessary,  71 
To  reasonable  use  of  water,  56,  57,  71,  81. 

83,  212 

On  navigable  streams,  414 
On  lakes  and  ponds,  421-430 
To  high-  or  low-water  mark,   374,   382, 

401-414 

To  increase  volume  of  water,  58 
To  his  share  of  water  for  irrigation,  71 
In  waters,  limited  by  what,  381 
To  water  continues,  how  far,  84,  212 
To  enforce  all  vendor's  rights  in  stream. 
213 


!  RIPARIAN  OWNER—  Continued. 
Rights  of : 

To  limit  stream  on  his  property,  134 
To  acquire  right  to  dam  surface-waters, 

60,  185 

To  dam  new  channel  for  protection  dur- 
ing freshets,  133 

To  obstruct  stream,  60,  71,  81,  83-88 
To    build    structure    which    will    cause 

floods,  132 
To  detain  waters  to  a  reasonable  extent, 

81-83 

To  detain  water  for  log"  floating,  243 
Extend  to  low-water  mark,  when,  383 
To  pump  water  from  stream  to  reservoir, 

To  pump  water  for  irrigation,  75 

To  take  water  for  industrial  purposes,  63 

To  use  stream  for  stock  purposes,  208 

To  take  ice,  162,  164 

To  ice  of  artificial  pond,  166 

To  take  ice  to  center  of  channel,  164 

To  prevent  removal  of  ice  from  his  land, 

163 

To  advantages  of  drainage,  184 
To  drain  his  land  into  stream,  184 
To  drain  surface-waters  into  stream,  205 
To  change  method  of  discharging  waters, 

185 
To  enjoin  discharge  of  sewage  into  river, 

213 
To  prevent  sewage  discharge  above  his 

mill,  220 

To  discharge  large  quantities  of  water,  84 
To  release  and  discharge  waters  if  use 

be  reasonable,  84 
To  divert  stream,  101-121 
To  divert  water  to  supply  wants,  110 
To  lesson  water-supply  by  diversion,  102, 

105,  110 
To  divert  stream  into  new  channel,  106, 

115 
To  return  stream  to  old  channel,  when. 

54,  133 

To  interfere  with  watercourse,  when,  116 
To  divert  wrater  to  protect  land,  106 
To  divert  waters  to  neighbor's  injury, 

132,  134 
To    maintain    an    action    for    wrongful 

diversion,  108 
To  build  bulkhead  when  change  of  stream 

is  threatened,  134 

To  protection  from  diversion  or  pollu- 
tion of  underground  water,  259 
To  protect  underground  flow,  257 
To  protect  property,  132 
To  protect  his  land  from  floods,  134,  136 
To  protect  himself  by  embankments,  132, 

134 
To  complain  of  others  protecting  their 

land,  108,  135 

To  compensation  for  water  taken,  143 
To  compensation  for  injuries  that  cannot 

be  foreseen,  219 

Not  limited  to  present  modes  of  use,  219 
To  restrain  contamination  of  waters,  213 
To  damages  by  pollution  of  stream,  223 
To  excavate  bed  of  stream,  106 
To  deprive  others  of  their  water-rights, 

84 
To    recover    damages    for    invasion    of 

rights,  111,  204,  212 


INDEX. 
References  are  to  sections. 


627 


RIPARIAN  OWNER— Continued. 
Rights  of : 

Cannot  be  taken  without  compensation, 
211 

Acquired  by  prescription,  107 

Not  lost  by  non-user,  107 

In  surface-waters,  175 

To  change  flow  of  surface-waters,  205 

To  access  to  navigable  river,  241 

Destroyed  in  making  unnavigable  stream 
navigable,  241 

Against  prior  appropriator,  75 

Determined  by  laws  of  state,  412 

May  not  be  destroyed  by  harbor-line,  381 

To  construct  wharves,  414 

To  construct  pier  if  navigation  be  not 
obstructed,  381 

To  river-banks,  376 

To  alter  bank  or  structure,  131 

To  recover  land  between  high-  and  low- 
water  marks,  374,  414 

To  land  under  water,  383 

To  center  of  stream,  when,  164,  406 

To  land  under  pond,  421,  422,  424 

To  bed  of  lake  by  law  of  accretion,  390 

To  accretions,  378-383,  406,  424 

To  accretion  lost  by  dedication,  379 

Filling  to  a  stream,  381,  382 

To  new-made  land,  383 

To  reclaim  and  occupy  submerged  lands, 
389 

To  lease  his  interest  in  submerged  lands. 

389 

,      To  property  in  islands,  378,  431,  432 
May  not : 

Injure  others,  132,  134,  382 

Sell  waters  of  stream,  62 

Remove  ice,  when,  166 

Use  water-power  to  injury  of  lower  mill- 
owner,  58 

Take  so  much  ice  as  to  deprive  mill- 
owner  of  water,  166 

Discharge    corrosive    substances      into 
stream  to  injure  machinery,  216 

Injure  others  by  his  embankment,  132 

Change  channel,  when,  106 

Raise  water  by  levee,  131 

Be  divested  by  subsequent  survey  and 
grant,  406 

Close  up  end  of  street,  379 
Injured  by  : 

Embankments  or  barriers  of  neighbors, 
132,  134 

Barrier  in  stream  that  interferes  with 
flow,  131,  133 

Bridge  obstructing  stream,  112,  721 

Jetty  in  a  navigable  river,  242 

Filling  up  channel  with  sand,  138 

Discharge  of  sewers,  205 

Person  driving  logs  in  navigable  stream, 
243 

Wood  waste  lodging  on  premises,  222 

Diversion  of  waters  by  non-riparian  own- 
er, 61 

Diversion  of  waters  by  tenants,  not  re- 
sponsible, 52 

Shipbuilder  fastening  lines  upon  his  lands, 
244 

Mooring  vessels  on  bank  for  repairs,  244 

RIPARIAN   RIGHTS  : 

Incident  to  land,  55 


RIPARIAN  RIGHTS—  Continued. 
Incident  to  ownership,  51 
Belong  to  persons  entitled  to  possession,  53 
Rest  upon  title  to  bank,  421 
Are  common  and  not  divisible,  56 
Vested  in  city,  382 
Exercised  by  water-works  company,  when, 

Grantees  may  not  be  deprived  of,  when,  424 
Not  affected  by  wrongful  diversion,  108 
May  not    be   destroyed   by  state  without 

owner's  consent,  54 
Of  landowner  not  destroyed  by  laying  out 

of  street,  53 

Not  lost  by  non-user,  107 
In  navigable  waters  is  question  for  courts, 

231 

RIVERS  : 

(See  also  BANK  ;  BED  ;  RIPARIAN  OWNEBS  ; 

SHORES;  STREAMS;  WATERS.) 
Defined,  235 

Difference  from  a  bank,  235 
As  boundaries,  377-379,  401-420 
Harbor-line  fixed  arbitrarily,  381 
Dividing  line  between  bed  and  banks,  235 
Water  and  bank  correlative,  235 
Includes  what  at  flood,  374 
Non-tidal,  235,  238 
Has  no  shore  if  no  tide,  374 
Location  of  railroad  along,  745 
Flats  divided  among  adjoining  proprietors, 

383 
Soil  of,  incident  to  ownership  of  bank,  403 

RIVER-BANK  : 

Defined,  235,  374 

Are  elevations  which  contain  the  river,  235 

Limits  of,  are  indefinite,  235 

Limiting  boundaries  of  land,  235 

RIVER-BED  : 

Defined  and  described,  374 
What  are  the  limits  of,  374 
Is  soil  occupied  by  stream,  235 

RIVULET  : 

Diversion  of,  257 

ROAD: 

(See  also  HIGHWAY  ;  STREET  :  WAT.) 
Ownership  of  those  bordering  streams,  379- 
By  prescription  limited  to  actual  user,  681 
Future  changes  in,  366 
A  fixed  monument,  582 
Measurements  to,  606 

ROCK: 

When  a  good  monument,  370 

ROOF-WATER  : 

Causing  injury,  180 

Must  not  injure  neighbor,  18S 

Discharged 'into  alley,  182 

Discharged  into  street,  182 

Discharged  against  another's  wall,  181 

Right  to  discharge  upon  adjoining  lands. 

183 
RULE  : 

Extending  title  of  abutting  owners  to  center 
of  road,  449 

That  middle  of  way  is  boundary  not  abso- 
lute, 450 


628 


INDEX. 


References  are  to  sections. 


RULE! —  Continued 

In  regard  to  boundaries  to  natural  and 
artificial  streams,  406 

Regarding  boundaries  of  accretions,  383 

Of  dividing  accretions  subject  to  modifica- 
tion, 383 
.  To  determine  division-line  of  low  lands,  383 

Applied  to  divide  to  low  and  submerged 
lands,  388 

Governing  the  use  of  navigable  waters,  245 

For  determining  whether  a  particular  thing 
is  a  fixture,  7 

Of  water  company  must  be  reasonable,  150 

RULE  OF  MEASUREMENT  : 

For  measuring  flow  of  water,  75 

SEAL: 

Necessary  to  a  deed,  45 

SEA-SHORE  : 

Land  "at,"    "along,"    "by,"    "on,"   and 

"  with  "  the  sea,  406 
Control  retained  by  government,  375 
Division  of,  among  riparian  owners,  383 

SECTION  CORNERS  : 

How  re-located,  631 

Half-section  corners  need  not  be  equidis- 
tant, 580 

SEEPAGE : 

Owners  of  irrigated  lands  not  entitled  to,75 

SERVIENT  ESTATE  : 

(See  also  EASEMENT;  ESTATES;  LAND.) 
Burdened  with  easement,  643 

SERVITUDE  : 

(See  also  EASEMENTS  ;  ESTATES.) 
Explained,  431 

SETTLEMENT : 

(See    also    AKBITEATION  ;    BOUNDARIES  ; 

SURVEYS.) 

Of  controversies  encouraged  by  courts,  491 
Of  boundary-line,  365,  461-504 

SEWAGE  : 

(See  also  POLLUTION:  STREAMS;  WATERS.) 
Required  to  be  purified,  210 
Disposal  of  city's,  220 
Disposal  discharged  into  stream,  210 
Amount  discharged  is  limited,  212 
Discharged  in  large  quantities  in  river,  207 
Discharge  of,  enjoined  by  landowners,  213 
Discharged  by  right  acquired  by  prescrip- 
tion, 212 

SEWERS  : 

In  streets  and  ways,  841-860 

License  to  build,  irrevocable,  664 

Over  private  land,  right  to  repair,  848 

Built  and  abandoned  by  city,  186 

Public  officers  determining   efficiency  of 

proposed, 188 

Constructed  in  bed  of  stream,  101 
Obstructing  navigation  a  nuisance.  242 
May  be  drained  into  river,  when,  205 
Discharged  into  canal,  205 
Discharged  into  water  not  used  for  domes- 
tic purposes,  207 
Riparian  owner  may  prevent  its  discharge 

above  his  mill,  220 
Discharge  of,  and  injury  to  ferry,  208 


SEWERS —  Continued. 

Liability  for  draining  wells  and  springs, 
255 

Polluting  stream,  204 

Faulty  construction  which  caused  pollu- 
tion, 215 

In  which  water  is  collected  must  be  taken 
care  of,  272 

Settlement  of  buildings  from,  liability,  334 

SHIFTING : 

Of  boundaries,  371-400 

SHORE : 

(See   also    BANK;    BEACH;    BOUNDARY; 
RIPARIAN  OWNER ;  SEASHORE;  STREAM.) 
In  a  description,  423 
Defined  as  a  boundary,  373 
Boundary  on,  limited,  376 
"At,"  "along,"  "by,"  "on,"  and  "with" 

the  shore,  363,  406 
Conveys  same  idea  as  "bank,"  407 
Formed  by  accretions,  383 
As  boundary  changes,  372 
Changes  in  length  of,  383 
Below  high- water  mark,  376 
Of  navigable  waters  and  their  use,  244 
Public  may  anchor  on  shores  of  navigable 

waters,  244 

Determining  ownership  of,  371-420 
Right  to  exclude  public  from,  683 

SHORTAGE  : 

Of  area  considered,  when,  588-590 
Of  area  of  house-lots,  598 

SIDE  : 

Of  a  way,  in  a  description,  452 
Measurement  to    or  from  the  side   of  a 
structure,  605 

SIGNS  : 

In  a  description,  560,  561 

SITE: 

First  essential  of  an  engineering  enter- 
prise, 1 

SMOKE  : 

(See   also   GAS   AND   OIL;    EASEMENTS; 

LIGHT  AND  AIR.) 
Injury  from,  must  be  visible,  301 
Which  is  unwholesome,  301 
Created  by  lawful  business,  301 
Degree  permissible  in  the  atmosphere,  301 
Right  to  discharge  it  upon  another's  land, 

307 
Smoke  ordinances  are  within  exercise  of 

police  power,  when,  301 
Ordinances  to  prevent  nuisance,  304 

SOIL: 

Ownership  of,  in  streets  and  ways,  379, 

441-446,  454 
Not  included  in  grant  of  right  of  way,  452 

SPELLING : 

Poor  spelling  in  a  deed,  562 

SQUARE   FOOT: 

Land  purchased  by,  590-597 


INDEX. 
"References  are  to  sections. 


629 


SPRINGS : 

Drained  by  construction  of  public  works, 

255 
From  which  no  stream  runs  belongs  to 

owner  of  the  land,  254 
Eight  to  use  waters  of,  110 
Bights  of  grantor  and  grantee,  261 
May  not  be  diverted  to  unknown  subterra- 
nean channels,  110 

STAIRWAY  : 

License  to  use,  666 

STAKES  AND  STONES  : 

(See  also  BOUNDAEIES  ;  MONUMENTS  ;  DE- 

SCBIPTIONS  ;   SOBVEY.) 

As  a  monument,  370 

Location  shown  by  parol  evidence,  542 

STARTING-POINT : 

Denned,  367 

In  making  survey,  630,  631 
Must  be  definite,  367 
Monument  as  a,  581 

When  natural  objects  are  taken  as  monu- 
ments, 369 
Keferred  to  bodies  of  water,  405-410 

STATE  : 

Laws  of,  determine  boundaries,  412 

Boundaries  of,  how  determined,  365 

May  not  destroy  rights  of  riparian  owner 
without  his  consent,  54 

Prescriptive  rights  against,  534,  682-685 

Is  original  landowner,  375 

Title  to  land  added  by  filling  a  stream  is  ac- 
quired from,  381 

Owns  accretion  inside  of  harbor-line,  when. 
381 

Owns  submerged  land,  when,  377-390 

Owns  land  gained  by  sudden  receding  of 
waters,  424 

Bounded  by  stream  owns  to  the  center,  239 

Owns  fee  of  street,  when,  759 

Proprietor  of  its  maritime  border,  375-378 

Cannot  grant  exclusive  rights,  819 

Controls  navigable  waters  within  its  bor- 
ders, 239,  241,  375 

May  grant  exclusive  privileges  to  a  tele- 
phone company,  822 

May  require  telephone  lines  to  be  placed 
underground,  833 

May  not  interfere  with  power  of  Congress 
over  interstate  commerce,  833 

STATUTES  : 

General  statute    limiting  power  to  grant 

franchises,  871 

Affecting  remedies  of  corporations,  870 
Limiting  amount  of  land  a  corporation  may 

hold,  42 
Limiting  power  of  foreign  corporations  to 

acquire  real  estate,  36 
Prohibiting  state  monopolies,  819 
In  regard  to  steam  railroads  on  streets,  760 
Making  railroads  post-roads,  821 
Empowering  cities  to  erect    water-works 

apply  to  what,  142 

Making  town  liable  for  damages  by  main- 
taining sewer,  255 

Of  the  state  superseded  by  U.  S.  laws,  822 
STATUTE  OF  FRAUDS  : 
Kequires  all  instruments  of  conveyances  to 
be  signed,  45 


STATUTE  OF  LIMITATIONS  : 

See  LIMITATIONS  ;  PRESCRIPTION. 
STEAM  RAILROAD  : 

In  streets  and  highways,  756-760 
Additional  burden  upon  highways,  758 
On  streets,  statutes  regarding,  760 
An  improved  means  of  travel,  758 
STREAM  : 

(See  also  ACCRETIONS:  KIPARIAN  OWNERS; 

WATERSCOURSE  ;  WATERS.) 
Defined  and  described,  377 
Artificially  deepened  is  a  watercourse,  172a 
Spreading  out  is  still  a  watercourse,  172a 
Ownership  of  bed  or  bottom  of,  377-379, 

401-420 
Accumulation  in,  may  not    be   interfered 

with,  382 

Is  private,  when,  172a 
Non-navigable,  is  private,  233 
Navigable,  when,  231,  232 
Distinction  between  navigable  and    non- 
navigable,  238 

May  be  navigable  without  current,  234 
Is  legally  navigable,  when,  232,  234 
Is  public,  if  navigable,  231 
Whether  public  highway  is  question  for 


jury,  243 
'ublic 


Public  easement  of  passage  over,  is  para- 
mount, 240,  241 

Should  be  navigable  in  its  natural  condi- 
tion, 233 

Made  floatable  artificially  is  not  public,  233 
Logs  driven  down,  by  use  of  dams,  243, 
Becomes  navigable  if  used  twenty  years  as 

public  thoroughfare,  234 
For  floating  logs  and  timber,  243 
Eight  to  float  logs  in,  acquired  by  adverse 

use,  243 

Diversion  and  obstruction  of,  101-121 
Cannot  be  diverted,  when,  60 
May  be  diverted  for  irrigation,  101 
Diverted  under  a  mere  license,  662 
May  be  diverted  by  riparian  owner,  101-121, 

132 
Current   of,   may  be   limited  by  riparian 

owner,  134 

Excavated  and  deepened,  106 
Unfit  for  floating  logs,  but  improved  by 

riparian  owners,  233 
Diversion  into  new  channel,  105,  115 
Construction  of  sewer  in  bed  of,  101 
Eeturn  of,  to  old  channel,  133 
Eesto ration  to  old  channel  prevented,  107 
Deflection  of,  against  lower  owner,  137 
Should  not  be  deflected,  137 
Current   may    not    be    deflected    against 

other's  land,  when,  382 
Encroachments  of,  how  prevented,  382 
Natural  flow  increased  by  embankments, 

191 

Overflow  by  contraction  of  bridge,  117 
Protection  against,  131-140 
Detention  and  obstruction  of,  81-100 
Obstruction  of,  not    in  violation  of    law, 

when,  116 

Eiparian  owner  may  not  obstruct,  71 
Obstruction  of  bridges,  etc.,  112 
Obstructed  during  erection  of  structure, 

116 

Injunction  to  restrain  obstruction  of,  118 
Used  for  navigation  obstructed,  121 


630 


INDEX. 
^References  are  to  sections. 


STREAM— Continued. 

In  confining,  must  not  injure  other  land- 
owners, 382 

Bight  to  take  ice  from,  depends  upon  what, 
167 

Determination  of  its  capacity  and  uses,  84 

Reasonable  use  of,  207 

Used  for  stock  purposes,  when,  208 

Bight  to  use  acquired  by  prescription,  212 

Prejudicial  to  health,  172a 

Waters  of,  gradually  disappearing  and  per- 
colating through  soil.  257 

No  distinction  between  surface  and  sub- 
terranean, 259 

Of  great  volume  flowing  through  under- 
ground courses,  259 

May  not  be  destroyed  by  landowner  having 
right  to  divert  percolating  waters,  254 

Maliciously  destroyed,  271 

Pollution  of,  201-223 

Pollution  of,  a  nuisance,  202,  209 

Pollution  of,  increasing  with  growth  of 
city,  212 

Instances  in  befouling,  218 

Polluted  by  oil  soaking  into  ground,  264 

Polluted  by  refuse  from  sawmills  and  tan- 
neries, 222 

Polluted  by  stables,  208 

Prescriptive  right  to  pollute  it  is  limited, 
212 

Supplying  a  city  with  pure  water  may  not 
be  polluted,  143,  207 

City  is  liable  for  fouling,  215 

Contaminated  by  drainage  of  surface- 
waters,  208 

Waters  fouled  by  operation  of  manufac- 
tories, 201 

Corrosive  substances  of,  injuring  riparian 
owner's  machinery,  216 

Discolored  by  clay,  206 

Usefulness  destroyed  by  refuse  being  dis- 
charged, 217 

May  be  used  for  sewer  purposes,  how,  211 

Sewer  may  be  discharged  into  it,  when,  205 

Factory  refuse  discharged  into,  208 

Befuse  deposited  to  make  room  for  retain- 
ihg-wall,  217 

Must  receive  natural  drainage,  184,  205 

Pollution  of,  by  joint  wrong-doers,  214 

Described  as  a  boundary  of  land,  377-379, 
401-420 

Is  boundary,  though  it  move,  377 

Becomes  a  boundary,  when,  378 

A  fixed  monument,  582 

As  a  monument  controls  distance,  402 

Forming  borders  of  states,  239 

Belongs  to  the  older  state,  239 

Bule  for  settling  boundary-lines  of,  383 

Bules  applicable  to  natural  and  artificial, 
406 

Land  "at,"  "along,"  "by,"  "on,"  and 
"  with  "  a  stream,  406 

Connecting  lines  across,  383,  387-390 

Biparian  owner  has  title  to  its  center,  164 

Center  or  middle  of,  described,  387 

Middle  line  of,  does  not  depend  upon  its 
depth,  409 

Determination  of  middle  line  of,  411 

Middle  of,  lines  perpendicular  to,  387-390 

Changes  in,  366,  371-390 

Value  of,  outweighs  losses  by  erosion,  371 

Sinuosities  of  natural,  377 


STREAM—  Continued. 
Loss  of,  by  landowner,  371-390 
Gain  to  laud  by  deposits,  378-390 
Laws  of  accretion  apply,  when,  371-399 
Measurements  to  or  from,  606 
Meander  of,  means  what,  408-410 
Bed  and  banks   of,  make  up  area  of  lot, 
when,  411 

STREET : 

(See  also  ABUTTING  OWNER;  HIGHWAY; 
BOAD;  WAY.) 

Property  in,  of  abutting  owoers,  442-446, 
759 

Though  private,  may  belong  to  abutting 
owners,  453 

Beverts  to  original  owner,  when,  456 

Grantee  owns  all,  when,  443 

City  cannot  order  removal  of  soil  from,  442 

Superior  rights  in,  determined  by  uses  in- 
cident to  travel,  296 

Subject  to  easements  for  travel,  2 

Public  rights  in,  are  pre-eminent,  442 

Unauthorized  use  of,  797 

Bight  to  use  for  right  of  way,  782 

Exclusive  ownership  in  city,  781 

Fee  of,  owned  by  state,  759 

Priority  of  occupation,  784 

Accretions  to,  379 

Accretion  to,  belongs  to  whom,  379 

What  is  an  additional  burden  on,  721,  756T 
781,  794,  814,  841 

In  making  find  improving,  a  city  is  the 
agent  of  the  state,  721 

Diversion  of,  to  other  uses,  794 

Proper  use  of,  diverted,  759 

Obligation  to  keep  it  unobstructed,  783 

Obstruction  of,  a  nuisance,  306 

Obstructed  by  landowner,  709 

Used  to  described  land  conveyed  implies 
dedication,  709 

Dedicated  to  public  cannot  be  closed  by 
dedicator,  705 

City's  rights  in,  acquired  by  dedication,  707 

Discharge  of  roof-waters  into,  182 

Boundaries  on,  421-460 

Boundaries  on  private  or  unaccepted,  453 

Intersection  of,  in  boundaries,  452 

What  is  the  street-line,  605 

Center  line  a  boundary,  449 

Called  for  as  a  boundary  or  monument,  449 

Future  changes  of,  366 

Boundary  unaffected  by  changes,  445 

Measurements  to  or  from,  606 

Extension  of,  must  be  in  its  original  direc- 
tion, 445 

Area  of,  to  be  included,  when,  411 

Adoption  of  a  plan  for  its  grading,  188 

Filled  up  and  graded  by  city,  187 

Graded  so  as  to  turn  water  upon  abutting 
land,  190 

Surface-water  discharged  or  detained  by 
grading  of,  187 

Grade  mast  not  be  changed  by  cable  rail- 
way, 789 

Grade  of,  changed  in  constructing  railroad, 
761,  781 

Street  railway  not  an  additional  burden,  781 

Consent  of  city  to  use,  by  railway,  787 

Trolley  lines  upon,  798 

Exclusive  right  of  railway  in,  785 

Steam  railroads  in,  756-760 


INDEX. 
References  are  to  sections. 


63  r 


STREET—  Continued. 
Steam  railroad  a  burden  upon,  758 
Statutes  regarding  steam  railroads  on,  760 
Determination   of    proper    use    by    steam 

railroad,  759 

Telegraph  lino  a  burden  on,  814 
Authority  to  occupy  with  telegraph  line,  812 
Telegraph  lines  not  incident  to  travel,  794 
Damages  for  use  of,  for  telegraph  line,  816 
Of    municipal    corporation    for    telegraph 

lines,  814-816 
Subways  iu,  841-860 
Water-  and  sewer-pipes  in  streets  by  license, 

664,  844 
Monopoly  of,  for  subways,  848 

STREET  RAILWAY  : 

(See  also  ELECTRIC  RAILWAY  ;  RAILROAD  ; 

RIGHTS  OF  WAY.) 

Charter  confers  corporate  existence,  794 
Distinguished  from  ordinary  railroad,  798 
Subsurface  railway  is,  787 
Must  act  within  authority  of  charter,  784 
Conditions  imposed  upon,  787,  788 
Location  fixed  by  statute,  794 
Exclusive  right  in  street,  785 
Extension  of,  authorized  by  legislature,  794 
Construction  of,  in  street,  793 
Right  of  way  of,  781-800 
Consent  of  abutting  owners,  790 
Abutting    owner    may  not  enjoin  use  of 

street  for,  786 

Not  an  additional  burden  upon  streets,  781 
Subway  for,  846 
Time  limit  for  completion,  791 
Not  completing  road  on  time,  791 
Having  priority  of  occupation,  784 
Tracks  may  be  used  by  another  company, 

when,  785 

May  prevent  others  from  using  tracks,  785 
Single-track,  may  not  be  double-tracked, 

when,  789 
Completion  delayed  by  city's  interference, 

791 

Leaving  authorized  route,  794 
Using  streets  without  authority,  797 
Confined  to  streets  authorized  to  occupy, 

797     . 
Has    right   of   way  for    cars    over   other 

vehicles,  785 

Franchise  is  granted  by  legislature,  796 
Construction  of,  franchise,  795 
Forfeiture  of,  franchise,  796 
Prevented    from   leasing   rights    or    fran- 
chises, 785 

What  are  proper  uses,  721,  781,  814,  841-843 
Operated  for  freight  purposes,  781 
Change  of  motive  power,  799 
City's  requirements  of,  788 
Duties  of,  793 

Liable  for  defective  structures,  794 
Not  liable  for  necessary  damages,  794 
To  enjoin  use  of  electricity,  complainant 

must  have  used  care,  832 
Character  not  changed  by  motive  power,  799 

STRIP: 

Of  land  reserved  about  town-site,  455 
STRUCTURE : 

(See   also   BRIDGES;   BUILDINGS;   EASE- 
MENTS ;  LATERAL  SUPPORT.) 
Stability,  preservation,  etc.,  overlooked,  1 


STRUCTURE— Continued. 

Care  must  be  taken  in  protecting    from 
water,  131 

Lateral  support  for,  321-335 

Overhanging  neighbor's  land,  336 

May  not  be  placed  between  high-  and  low- 
water  mark,  when,  242 

Cost  lessened  by  diversion  of  stream  113 
114 

Over  stream  must    provide    for  ordinary 
floods,  113 

Built  to  carry  off  extraordinary  floods,  117 

Must  be  kept  free  of  obstructions,  119 

Of  railroad  company  must  be  erected  with 
care,  192 

Defectively  built,  189 

A  nuisance,  when,  117,  121 

Erected  by  grantor  and  which  creates  a. 
nuisance,  306 

In  stream  not  a  nuisance,  when,  242 

Erected  as  monuments,  370 

Utilized  to  describe  estate,  370 

STUMPS  : 

Cross-section  of,  to  prove  age,  580 

SUBMERGED  LANDS  : 

Reappearing,  how  divided,  883-390 

The  subject  of  salo,  patent,  and  lease,  389 

SUBMISSION  : 

(See  also  ACQUIESCENCE  ;    AGREEMENT  ; 
ARBITRATION  ;     BOUNDARIES  ;      SUR- 
VEYOR.) 
To  arbitration  may  be  revoked  by  change  of 

circumstances,  468 

To  arbitration  under  seal  should  be  re- 
voked by  like  instrument,  468 
To  arbitration  must  express  intention  to 
submit  and  abide  by  award,  465 

SUBSCRIPTIONS  : 

For  public  work,  748 

SUBSURFACE    CURRENTS: 

(See  also  PERCOLATING  and  UNDERGROUND 

WATERS.) 

"  Known  "  and  "  defined,"  256 
Flowing  in  defined  channels,  256 
Appropriation  and  use  of,  258 
Need  not  flow  continuously,  259 
Channel  of,  marked  by  plants,  259 
Diverted  by  use  of  land  for  public  purposes, 

255 

SUBTERRANEAN   WATERS  : 

See  PERCOLATING  and  UNDERGROUND  WA- 
TERS. 

SUBWAYS  : 

(See  also  PIPE-LINES.) 
Rights  in,  841-860 
For  water,  oil,  gas,  etc.,  841-860 
Negligence  in  care  of,  849 
In  streets  by  act  of  legislature,  841-860 
Use  of  streets  for,  792,  795,  819,  848 
Built  under  license,  844 
For  street  railway,  846 

SUFFERANCE,  ESTATE   AT: 

See  ESTATE-AT-SUFFERANCE,  21. 

SUFFICIENCY  : 

Of  a  description,  543,  550,  544 


INDEX. 
References  are  to  sections. 


SUPPORT : 

See  LATERAL  SUPPORT;  VERTICAL  SUP- 
PORT. 

SURFACE-WATERS  : 

Defined  and  described,  171,  172a 
A  lake  is  more  than,  when,  172 
Bights  in,  defined,  171-195 
Bights  of  riparian  owners  in,  175 
Distinguished  from  watercourses,  172,  173 
Waters  overflowing  banks  are,  173 
Cease  to  be  such,  when,  171,  179 
Have  no  banks  or  channels,  171 
Control  of,  by  cities,  186,  187 
.     Drainage  of,  178 

Discharged  or  detained  by  grading  streets, 

187 

Injuring  land  by  flooding  street,  186 
Flooding  lot,  184 
On  private  property  from  insufficiency  of 

sewer,  190 

Distinguished  from  percolating  waters,  253 
Percolating  through  soil  into  cellar,  184, 189 
Collected  and  cast  upon  lower  land,  184, 185 
Drained  into  adjoining  pond,  179 
Water  gathered  in  reservoir  is,  when,  172 
Accumulated  on  railroad  right  of  way,  191 
Flow  of,  may  be  changed,  184  , 
Obstruction  and  diversion  of,  120,  175-177, 

191 

Prevented  from  coming  upon  land,  177 
Measure  of  damages  due  to,  193 
Measure  of  damages  for  diversion  of,  193, 

194 

Lower  owner  may  dam  them,  when,  185 
Drained   into  stream  by  riparian  owner, 

184,  205 

Prescriptive  rights  to  drainage  of,  185 
Pond  of,  may  not  be  drained,  where,  179 
Pollution  of,  201-223 

Sand  and  silt  not  deleterious  matter,  218 
Drainage  contaminating  stream,  208 
Carrying  solid  matter  into  mill-pond,  184 
Water  seeping  through  embankment,  173, 

175 
Discharged  by  culverts,  120 

SURPLUSAGE  : 

In  a  description  of  land,  547 
Map  treated  as,  555 

SURRENDER : 

Of  corporate  franchise,  879-881 

SURROUNDING  CIRCUMSTANCES : 

May  be  shown,  when,  542 

SURVEY : 

(See  also  AWARD  :  BOUNDARIES  ;  DEED  ; 

DESCRIPTION;  MONUMENTS.) 
Object  of,  to  establish  monuments,  494 
Are  to  determine  original  line,  574-580 
Should  establish  old  landmarks,  not  upset 

them,  574 
Courses  and   distances  are  to   determine 

where  original  lines  were  run,  574-580 
Presumption  that  it  was  made  on  ground, 

578,  580 

Line  run  not  always  line  described,  363 
Older  and  later,  602 
Hearsay  evidence  of  old,  620 
Date  of,  determined  from  a  tree,  580 
Beferred  to  in  a  deed,  549 


SURVEY—  Continued. 
Admissible  as  evidence,  542 
Starting-point  in  making,  630,  631 
Methods  of  closing.  633 
Closing  line,  how  run,  547 
Measurements  to  and  from  objects,  605-607 
Custom  to  overrun  measurements,  597 
Dignity  of  calls,  632 
Importance  of  calls  in,  575 
Direct  and  reverse  calls  in,  632 
Calls  that  govern,  571-610 
Calls  for  adjoiners,  583-585 
Conflict  between  field-notes  and  map,  600 
Bule  as  to  what  controls  in  descriptions, 

573-576 

Warranty  as  to  acreage,  588-597 
Includes  bed  and  bank,  when,  411 
Excess,  how  distributed,  597 
Which  overlaps  another,  602 
Ideal  monuments  in  a,  370 
Monuments  in  government,  577 
Should  anticipate  changes,  366,  371-390 
Of  lines  joining  monuments  on  shore  with 

inaccessible  lines,  383,  387-390 
Of  middle  of  stream,  411 
Impracticable  to  determine  center  line  of 

stream,  404 
"To,"  "by,"  "at,"  "along,"  "on,"  "with," 

"up,"  or  "down"  a  stream,  405-410 
Trespass  in  making,  351-360 
Court  may  give  right  to  enter  and  make, 

May  be  authorized  by  state  without  com- 
pensation to  landowners,  353 
Establishing  a  boundary  may  be  waived  by 

both  parties,  467 

Agreed  to  may  not  be  denied,  467 
May  estop  party  from  disputing  line,  499 
By  adjoining  owners,  without  any  agree- 
ment, creates  no  estoppel,  499 

SURVEYING  : 

Not  an  exact  science,  383 

Not  purely  a  science  of  mathematics,  574 

Belation  of  law  to,  361 

Value  of,  varies,  383,  494 

Elements  of  error  in,  571 

Value  of  checks  in,  587 

SURVEYOR : 

(See  also  ARBITRATOR.) 
His  advice  vs.  a  lawyer's,  361 
His  views  and  the  court's,  587 
Questions  for  his  determination,  541 
Duties,  what  are  they,  362,  512 
Sources  of  annoyance  to,  370 
His  visit  a  public  calamity,  when,  574 
His  duty  to  locate  monuments,  574 
Must  anticipate  changes  iu  topography,  366 
Deals  with  description,  367 
Notes  and  descriptions  of,  incorporated  in 

grant,  404 

Property  described  by  lines  run,  404 
Certificates  of  maps  and  notes,  616-618 
Value  of  Ms  testimony,  611-613,  626-633 
Knowledge  acquired  while  surveying,  626- 

628 

Opinions,  when  possessed  of  the  facts,  628 
Opinions  as  evidence,  627,  628 
Opinions  with  jurymen,  611-633 
Determinations  of,  us.  old  inhabitant's  tes- 
timony, 619-621 


INDEX. 
References  are  to  sections. 


633 


SURVEYOR—  Continued. 
Judgment,     discretion,     and     ability     of, 

sought,  477 

Operations  on  land,  446 
Determination  of  boundary-line  by,  461-464 
Called  upon  to   determine  boundary-lines 

that  are  already  settled,  494 
Few,  informed  of  rules  of  law  with  regard 

to  boundaries,  404 
Cognizance  of  client's  rights,  512 
Should  include  all  that  legally  and  properly 

belongs  to  an  estate,  512 
May  include  bed  and  banks  of  stream  in 

survey,  when,  411 
May  not  change  a  monument,  352 
Monument  satisfactory  to,  370 
Trespass  by,  on  lands,  351-360 
Is  liable  for  trespass,  352 
Unauthorized  person  may  not  justify  his 

trespass,  352 

May  enter  upon  land,  when,  755 
Trespass  by,  when  under  orders  of  govern- 
ment, 353-355 
As  an  Arbitrator : 

Powers  are  restricted,  472,  478 

Must  not  exceed  powers,  474 

Effect  of  mistakes  of,  473 

Must  act  with  others,  480 

Compensation  of,  482 

Looks  to  submission  for  his  duties  and 
power,  471 

SYMBOLS : 

Used  in  a  description,  560,  561 

TACKING  : 

Of  adverse  possession  of  several  holders, 

686,  687 
Of  husband's  and  widow's  possession,  687 

TAXATION  : 

Of  franchises  and  other  property,  886 
Of  corporate  franchises,  865,  886 
Exemption  from,  a  franchise,  865,  876 
Sale  of  franchise  of  exemption,  876 
Of  incorporeal  property,  847 
Of  pipe-lines,  847,  865,  886 
Of  telegraph  companies,  834 

TAXES  : 

Payment  of,  evidence  of  an  adverse  claim, 
523 

TELEGRAPH    AND    TELEPHONE 
COMPANIES : 

(See  also  ELECTRICITY  ;  ELECTRIC  and 
STREET  RAILWAYS  ;  EIGHTS  OF  WAY.) 

Conditions  imposed  upon,  823 

Bights  of  way,  811-840 

Can  contract  for  right  of  way,  819 

Eight  of  way  over  public  lands  and  military 
roads,  820 

Expending  money  on  strength  of  prior 
right  of  way,  831 

Lines  on  railroad  right  of  way,  rights  of 
abutting  owner,  444 

Eight  of  way  lost,  818 

State  cannot  grant  exclusive  rights  to,  819 

Exclusive  privileges  granted  by  state,  when, 
822 

Franchises  of,  861-887 

Charter  to  erect  lines  and  permit  their  op- 
eration, 816,  817 


TELEGRAPH  AND  TELEPHONE 

COMPANIES  —Continued. 
Franchises  to  use  streets  are  subservient 

to  rights  of  public,  296 
Eight  to  place  poles  along  street,  822 
Grant  to  run  wires  through  streets,  825 
Wires  must  not  obstruct  travel,  826 
Subways  in  streets,  841-860 
Wires  over  one's  laud,  817 
Injuries  from  lines  and  poles,  817 
Cutting  shade-trees,  817 
Licensed  to  clip  branches,  319 
Guilty  of  negligence,- 826 
Liability  for  injuries,  817 
Need     not    provide    against    unexpected 

storms,  826 

Abandoning  its  property,  826 
Taxed  by  state,  834 

TELEGRAPH  AND  TELEPHONE 
LINES  : 

Circuits,  and  electric-railway  lines,  831 
Using  earth  as  return  circuit,  831 
Belief  for,  from  earth  current,  296 
Terminal  poles  used  to  carry,  830 
Injured  by  electric-railway  system,  296, 830 
Entitled  to  protection  against  use  of  street 

by  other  companies,  295 
To  enjoin  interference  with  the   company 

must  have  used  due  care,  832 
Must  be  protected  by  new  devices,  296 
New  means  of  neutralizing  effects  of  other 

currents  must  be  adopted,  when,  295 
In  contact  with  those  of  street  railway,  829 
Injured     by   subsequent    electric-railway 

company,  830 

Interference  by  induction,  828 
A  burden  on  streets,  814,  818 
Eemoved  from  street  by  the  court,  814-816 
Are  easements  in  land,  818 
License  to  maintain,  818 
Neglect  in  erecting,  826 
Manner   of    construction    determined   by 

state,  834 

Are  avenues  of  interstate  commerce,  833 
On  state  roads,  822 

May  occupy  railroad  right  of  way,  818 
On  street  gives  abutting  right  to  damages, 

815 

Measure  of  damages  for  use  of  street  for,  816 
Across  navigable  waters,  824 
Controlled  by  Federal  Government,  833 

TELEGRAPH  POLES  : 

On  streets  and  ways,  811-840 

TELEPHONE : 

See  ELECTRICITY;  TELEGRAPH,  etc. 

TEN ANCY-IN- COMMON : 

Denned  and  described,  25,  31.4 

No  right  of  survivorship,  25 

Tenants  may 'hold  by  different  title,  25 

Tenant  may  alienate  his  share,  25 

Each  tenant  has  right  to  entire,  not  sole, 

possession  of  estate,  25 
Adverse  possession  vs.  cotenants,  516 
In  line-trees,  311-314 

TENANT : 

Cannot  deny  landlord's  title,  21 
Prevented    by  landowner  from  removing 
fixtures,  8 


634 


INDEX. 
References  are  to  sections. 


TENANT — Continued. 
His  possession  not  adverse  to  landlord,  516 
Adverse  possession  under  a  void  lease,  516 
Must  terminate  tenancy,  etc.,  to  hold  ad- 
verse to  owner,  516 
Going  upon  premises  after  termination  of 

lease,  is  a  trespasser,  8 
Under  estate  at  will  has  no  interest  to 
convey,  20 

TENANT  FOR   LIFE  : 

Jlights  of,  16 

Adverse  possession  of,  516 
May  not  convey  more  than  his  own  inter- 
est, 16 

TENEMENTS  : 
Defined,  3 

TERMINI  : 

Of  railroad  route,  745-750 

TESTIMONY  : 

(See  also  DECEASED  PEESON;  DECLARA- 
TION  ;    EVIDENCE  ;     HEARSAY  ;    PAROL 
PROOF;  SURVEYOR.) 
Of  old  inhabitants,  as  to  boundaries,  619- 

621,  625-629 
Of  architect  as  to  cost  of  party- wall,  343 

THREAD   OF   STREAM  : 

As  a  boundary  described,  409-420 

TIDE-LANDS  : 

Title  to,  is  in  states,  389,  407 

TIMBER  : 

License  of  purchaser  to  enter  and  take,  667 
Streams  for  floating,  243 

TIME: 

Of  appropriation  of  water,  75 

Eequired  to  occupy  and  acquiesce,  501 

In  which  city  may  purchase  a  franchise, 

142 
TITLE   TO   LAND  : 

(See  also  DEED;  DESCRIPTION;  ESTATE; 

LAND;  OWNERSHIP;  PROPERTY.) 
Acquired  without  consent  of  former  owner, 

32 
Acquired  Avith  assistance  of  former  owner, 

33 

Inures  to  a  person  by  estoppel,  when,  32 
Limited  to  intention  expressed  in  deed,  450 
Of  deed  delivered  to  third  person,  45 
Of  deed  passes  from  grantor  to  grantee 

when  delivery  is  made,  45 
Cannot  be  established  by  parol  evidence, 

495 

To  an  infinitesimal  strip  of  land,  455 
Interference  of,  explained,  532 
To  street  in  city,  319 
To  street  vests  in  abutting  owner,  456 
Efforts  of  courts  to  quiet  and  secure,  491 
To  land  affected   by  adverse  possession, 

511-540 
By  adverse  possession  not  affected,  when, 

495 

Established  by  limitation,  521 
Acquired    when  possession  held  by  mis- 
take, 517 

Does  not  pass  from  dedicator,  703 
Of  riparian  owners  fixed  by  laws  of  state, 

412 


TITLE  TO  LAND—  Continued. 
Under  tide-waters,  236,  376,  389,  414 
To  bed  of  lake,  421 

To  an  island  does  not  include  flats,  421 
To  accretions,  378-383 
Added  by  filling,  381 
To  alluvion  vests  in  whom,  378-383 
Of  upland  owner  in  low  lands,  376-390 
Submerged,  when  it  reappears,  380,  412 
To  ice  is  in  person  entitled  to  use  of  water,. 
167 

"TO      THE      BANK,     BEACH,     OR 
SHORE": 

In  a  description  of  land,  405-410 

"TO   THE   TOP   OF": 

"To  the  top  of"  or  "along  the  top  of"  a 
bank,  etc.,  407-410 

"TO' THE    WAY": 

In  a  description,  451 

TOWN: 

See  CITY  ;  VILLAGE. 

TOWNSHIP   LINES: 

Ascertained  how,  378 

TOWN-SITES  : 

Garnishments  of  maps  of,  454 

Map  of.  should  be  reviewed  and  revised,  454 

Narrow  strip  around  about,  reserved,  455 

TRADE : 

"  More  or  less  "  in,  596 

TRANSFER  : 

Of  franchise,  874-878 
License  the  subject  of,  668 

TRANSPORTATION  : 

Of  water,  gas,  and  other  fluids,  71-80,  101- 
130,  251-300,  841-860  . 

TRANSPORTATION  COMPANIES  : 

Franchises  of,  861-887,  871 

TRAVEL : 

See  HIGHWAYS  ;  ICE  ;  NAVIGABLE  WATERS  ; 
STREAMS;  STREETS. 

TREES  : 

(See  also  BOUNDARY  ;  MONUMENTS ;  EIGHTS 
OF  WAY.) 

As  boundaries,  611,  612 

Not  desirable  as  monuments,  370 

Identity  of  corner  trees,  631 

Means  of  locating,  369 

Cross-section  of,  to  prove  age,  580 

To  protect  banks,  382 

Planted  upon  boundary-line,  312 

Ownership  of,  near  boundary-line,  313, 315 

Timber  trees  cut  from  forests,  320 

Growing  in  railroad  company's  right  of  way, 
319 

Growing  in  public  ways,  319 

Overhanging  public  way,  318 

Whose  overhanging  branches  are  a  nui- 
sance, 316 

Maintenance  and  destruction  of,  314 

Cutting  for  telegraph  lines,  817 

Destruction  of,  by  gas,  849 

Measure  of  damages  for  destruction  of,  320 


INDEX. 


635 


References  are  to  sections. 


TRESPASS  : 

(See  also  ADJOINING  OWNEB;  BOUNDARY; 
LAKD;  SURVEYOR.) 

Defined,  351,  353 

Does  not  depend  upon  intention  or  mis- 
take, 351 

By  one  who  aids,  advises,  or  assents,  351 

License  of  purchaser  to  enter  and  take,  667 

Not  excused  by  showing  plaintiff  a  tres- 
passer, 351 

Award  may  be  a  defense  to  an  action  of,  462 

Not  authorized  by  custom,  441 

Act  of  employer  or  servant,  351 

By  surveyors  on  land,  351-360 

By  surveyor  under  instruction  of  stranger, 
352 

Trespasser  liable  though  acting  under  in- 
structions of  another,  351 

Court  may  grant  leave  to  enter  and  survey, 
353 

County  liable  for  that  of  its  officers,  352 

Encroaching  wall  is,  336 

To  make  openings  in  party-wall,  342 

By  gunning  and  hunting,  352 

Balloouists  liable  for  acts  of  trespassers, 
351 

Upon  narrow  strip  of  land,  455 

Prescriptive  rights  under,  671-700 

TRUSTEE  : 

Adverse  possession  by,  516 

May  take  fee  without  word  "  heirs,"  14 

May  dedicate  trust  lands,  704 

UNDERGROUND  CONDUITS : 

Eights  in,  841-860 

UNDERGROUND  CURRENTS  : 

Compared  with  watercourses,  259 
May  not  be  diverted,  259 
Diversion  and  obstruction  of,  275 
Method  of  determining  their  courses,  256 

UNDERGROUND  WATERS  : 

(See  also  PERCOLATING  WATERS.) 
Grant  of  right  to,  260 
Prescriptive  rights  in,  262 
Pollution  of,  263 
Destroyed  for  some  motive,  271 

UNDERGROUND  WAYS: 

See  CONDUITS  ;  PIPE-LINES  ;  SUBWAYS. 

UNDIVIDED  INTEREST  : 

Held  when  land  is  not  located  by  descrip- 
tion, 559 
UNINTERRUPTED : 

In  prescription,  675-682 

UNITING  : 
Of  successive  adverse  users,  686,  687 

UPHEAVAL : 

Of  lands  from  overloading  adjoiner*s  lands, 

334 

UPLANDS  : 
Title  of  owner  in  lowlands,  376-390 

USE: 

(See  also  ADVERSE  USE  :  ADVERSE  POSSES- 
SION ;  BENEFICIAL  USE  ;  DOMESTIC  USE  ; 
EXTENT  OF  USE;  POSSESSION;  PRE- 
SCRIPTION; REASONABLE  USE;  STREAMS; 
WATERS.) 

Proper,  for  streets,  721.  781,  814,  841-843 

Of  streets  unauthorized,  797 


USE— Continued. 
Of  street  incident  to  travel,  294 
Incident   to   travel    determines    superior 

rights  in  streets,  296 
Of  street  railway  includes  what,  781 
Of  railroad  tracks  for  private  purposes,  797 
Of  right  of  way  of  railroad  restricted,  736 
Of  a  way  does  not  establish  a  dedication, 

709 
Of  public  highway  may  not  be  granted  for 

private  purposes,  721 
Of  light  and  air  incident  to  land,  301 
Of  steam  in  street  a  nuisance,  799 
Of  fuel  creating  unwholesome  smoke,  301 
Of    electricity    affecting   property   rights. 

291-300 

Of  earth  as  return  circuit  for  electricity,  831 
Of  metallic  circuit  prevents  interference  of 

electrical  currents,  830 
Of  terminal  telegraph  poles,  830 
Actual,  limits  prescriptive  rights,  681 
Extent  of  use  of  easement,  651 
Of  property  for  other  than  dedication  pur- 
poses, 708 

Is  sufficient  to  establish  acceptance,  706 
Of  banks  and  shores  of  navigable  waters, 

244 
Of  banks  for  general  purposes  not  included 

in  easement  of  passage,  244 

USE  OF  WATER : 

A  common  right  among  riparian  proprie- 
tors, 132 

Eeasgnable  uses  of  a  riparian  owner,  81 

Reasonableness  depends  upon  what,  81 

Whether  reasonable  or  not  is  for  the  jury, 
207 

Extent  of,  determined,  75 

Must  be  limited,  73 

Ordinary  and  extraordinary,  60 

When  a  natural  want,  71 

Is  an  artificial  want,  when,  258 

Must  be  adapted  to  stream,  84 

A  public  use,  when,  243 

Rules  governing  use  of  navigable  waters, 
245 

That  may  be  resorted  to  cannot  be  fore- 
seen, 2i9 

By  government  does  not  become  appur- 
tenant to  soil,  77 

Supplying  city  with  drinking-water,  207 

For  discharge  of  sewer,  205 

For  power  purposes,  83,  243 

Landowner  may  release  and  discharge 
waters,  84 

For  operation  of  mill  is  superior  to  water- 
supply  of  railroad,  81 

For  mining,  agriculture,  etc.,  75 

For  irrigation  a  public  use,  74 

Extent  of,  for  irrigation,  57,  75 

For  irrigation  shared  by  riparian  owners, 
71 

By  subsequent  appropriators,  75 

Point  of  diversion,  75 

Of  subterranean  currents,  258 

Of  percolating  waters  for  long  time,  262 

VAPORS   AND   ODORS: 

From  sewers  are  nuisances,  306 
From  gas-plant,  305 
VARIATION   OF   NEEDLE  : 
Judicial  notice  of,  561 


636 


INDEX. 
References  are  to  sections. 


VARY  : 

Parol  evidence  to  vary  deed,  542-562 

VAULT : 

Adverse  possession  of,  527 

VERTICAL   SUPPORT: 

In  coal-mining,  334 

VILLAGE  : 

(See  also  CITY;  CORPORATION  ;  FKANCHISE  ; 

STREETS.) 
Narrow  strip  around  about,  reserved,  455 

WALL: 

Used  as  a  boundary-line,  370 

Not  a  good  monument,  370 

Overhanging  adjoining  lot,  336 

To  obstruct  view  of  neighbor,  341 

To  prevent  encroachment  of  streams,  382 

WAR: 

Prevents  adverse  possession,  when,  688 

WARRANTY : 

As  to  area  of  a  survey,  588-597 
WATER : 

(See  also  APPROPRIATION ;  BOUNDARIES; 
ICE  ;  IRRIGATION  ;  LAKES  AND  PONDS  ; 
BIPARIAN  OWNERS  ;  SEA  ;  STREAMS  ; 
SURFACE-WATERS  ;  UNDERGROUND 
WATERS  ;  WATER  COMPANIES  ;  WATER- 
SUPPLY.) 

Value  of,  to  land,  371 
Bequires  what  for  its  transfer,  77 
Appurtenant  to  land,  403 
Determination  of  character,  172 
Quantity  increased  and  character  changed, 

216 
Having  defined  course  is  a  watercourse, 

172a 
Waters  which  flow  and  reflow  are  streams, 

235 
Capacity  of,  should  recur  with  regularity, 

243 

Between  states,  239 
Loss  of  body  of,  to  landowner,  371-390 
Of  a  great  lake  belong  to  state,  421 
License  to  fish  and  hunt  in,  667 
Of  lake  lowered  for  improvement,  424 
Taken  during  construction  of  works,  75 
Of  Riparian  Owners  in  Streams  : 
Bight  of  riparian  owners  to  enjoy,  134 
Bights  in,  sold  by  landowner,  260 
Extent  of  use  of,  75 
Use  of,  must  be  adapted  to  stream,  84 
Bight  of  riparian  owner  to  use,  58,  60 
May  not  be  used  unreasonably  by  riparian 

owners,  212 
May  be  used  for  industrial  purposes,  63, 

75 
Use  of,  for  power  purposes,  59,  75,  83, 

243 
Moderate  diversion  of,  may  be  made  for 

use  of  steam-engines,  101 
Sold  by  riparian  owner  to  railroad  com- 
pany, 62 

Use  of,  for  mining  purposes,  75 
Use  of,  for  gardening  purposes,  60 
For  domestic  purposes,  60 
Fit  for  primary  use  but  not  domestic,  207 
When  a  natural  want,  71 
Seasonable  use  of.  should  be  preferred, 
57,  58,  81 


WATER—  Continued. 

Of  Riparian  Owners  in  Streams  : 

Beneficial  use  of,  75 

Wasteful  use  of,  prevented,  58 

Less  valuable  must  yield  to  more  valuable 

use,  81 
Non-use  for  public  purposes    does  not 

alter  public  use,  149 
Use  of,  is  artificial,  when,  258 
Compensation  for,  must  be  made  to  ripa- 
rian owners,  when,  143 
Of  stream  may  not  be  diverted  to  injury 

of  another,  134 
Diverted,  must  be  used  within  reasonable 

time,  75 

Bight  to  divert,  for  irrigation,  71 
Diverted  under  a  mere  license,  101,  662 
Mode  of  diverting,  109 
Diversion  must  not  reduce  volume,  102, 

105,110 

Not  returned  to  original  channel,  105 
Point  of  diversion,  75 
Detention  and  obstruction  of,  81-100 
May  be  detained  for  what  purposes,  81-83, 

243 

May  not  be  unreasonably  detained,  167 
Obstructed  by  sawmill  to  injury  of  lower 

owner,  222 

Damming  of,  may  be  enjoined,  85,  86 
Of  stream  set  back  by  bridge,  112 
Baising  of,  must  not  obstruct  drainage, 

86 

Belease  and  discharge,  84-86,  190 
Opening  for  discharge  of,  117 
Discharge  of,  not  restrained,  when,  178 
Discharged  in  natural  condition,  185 
Appropriation  of,  by  non-riparian  owner, 

57-61 

Extent  of  appropriation  by  riparian  own- 
er, 57,  58 

Not  personal  property  until  captured,  77 
Collection  must  be  reasonable,  83 

Of  Navigable  Streams  : 

When  public  property,  56 
Title  to  navigable,  is  in  state,  381 
Bights  in,  to  harbor-lines,  381 
Bight  to  navigate,  is  public,  234 
Its  navigability  is  a  question  for  jury,  234 
Navigable    in    law    and    in  fact'   distin- 
guished, 238 
Having  natural  capacity  for  navigation 

are  navigable,  233 
Need   not  be    fit   for  navigation    at    all 

times,  232,  243 
Public  highways  for  floating  logs,  when, 

243 

Capable  of  floating  logs,  are  public  high- 
ways, 232 

Surface-waters  : 

Bights  regarding  surface-waters,  171-195 
Gathered  in  reservoir  is   surface-water, 

when,  172 
Overflowing    banks  are   surface-waters, 

173 
Passing  to  neighbor's  land  may  be  taken 

by  landowner,  272 
From  roofs,  180 
Conducted  into  mine  by  adjoining  owner, 

284 
Seeping  through  embankment,  173,  175 


INDEX. 


637 


References  are  to  sections* 


WATER—  Continued. 
Underground  Waters  : 

Subterranean  or  underground,  251-275 
Presumption  that  they  are  percolating, 

257 
Quantity  of  diminished,  is  evidence  of 

subsurface  current,  256 
Failing  to  flow  to  a  spring,  259 
Disappearing  upon  person's  land,  256 
Of  stream  gradually  disappearing    and 

percolating  through  sand,  257 
Escaping  from  subways,  145 
Drawn  off  by  percolations,  110 
Drawn  from  well  by  pipes,  261 

Pure  and  Foul  : 

Is  pure  when  wholesome  and  ordinarily 
pure,  148 

Kequired  to  be  made  potable,  210 

To  preserve  its  purity  city  is  not  bound 
to  maintain  structures,  220 

Pollution  of,  201-223,  263-270 

Taken  from  river  and  returned  unpol- 
luted, 61 

Source  of,  must  not  be  polluted,  143 

Of  well  impure,  264 

Muddy  by  engineering  operations,  207, 
218 

Polluted  by  factories,  etc.,  201,  216 

Made  hard  by  chemicals,  207 

Polluted  by  city  sewage,  211 

Polluted  by  discharge  from  purification- 
works,  210 

Eendered  impure  by  refuse  from  saw- 
mills, 222 

Polluted  by  gas-works,  264 

Measure  of  damages  for  pollution,  223 
For  Irrigation: 

For  irrigation  in  arid  countries,  71-77 

Taken  for  irrigation  limited,  75 

Use  for  irrigation  a  public  use,  74 

Unappropriated,  given  to  public,  74 

For  irrigation,  shared  how  by  riparian 
owners,  71 

What  constitutes  a  legal  appropriation, 
75 

Appropriation  of  all,  means  what,  75 

Appropriation  for  beneficial  use,  75 

Not  "appropriated"  until  used,  75 

Eight  of  first  appropriator  to,  75 

Appropriators  of,  may  construct  ditches, 
73 

When  returned  to  main  stream,  become 
part  of  it,  76 

How  measured  in  arid  countries,  75 
For  Water-supply  : 

By  city  or  company,  141-170,  143 

Scarcity  of,  how  treated,  84 

Collected  under  pressure  and  not  con- 
fined, 272,  274 

Quantity  and  quality  of,  148 

Furnished  to  inhabitants  unfit  for  use, 
148 

Not  filtered  as  required,  148 

Pipe-lines  for,  841-860 

Carriers  of,  cannot  claim  ownership,  73 

Separated,  collected  in  reservoirs  becomes 
personal  property,  62,  77 

Must  supply  to  inhabitants,  149 

Question  whether  applicant  for,  is  within 
reasonable  distance  is  one  for  the 
courts,  149 


WATER —  Continued. 
For  Water-supply  : 

Patrons  may  be  governed  by  reasonable 

rules,  150 

Power  of  company  to  fix  rents,  151 
Boundaries  on,  affected  by  : 
Bodies  of,  as  boundaries,  371 
Boundaries  not  confined  to  large  bodies, 

377 
Land     described     by,    will     follow    its 

changes,  381 

Action  of.  on  banks  of  stream,  377 
Erosion  of,  depends  on  velocity,  377 
Scouring  and  carrying  power  of,  377 
Receding  gradually  or  suddenly,  424 
Lands  submerged  by,  383-390 
Recession  of,  title  to  land  exposed,  381-390 
Of  lake  receding,  424 
Land  under,  included  in  acreage,  411 

WATER  COMPANIES  : 

(See   also   CORPORATIONS;    FRANCHISES; 

RIPARIAN  OWNERS;  WATERS.) 
Public  corporations,  when,  146 
Qttasi-public  corporations,  when,  149 
Franchises,  purchase  or  transfer  of,  142, 

874-878 

Franchises  of,  exclusive,  when,  147 
Powers  of,  construed,  141-143 
As  public  carriers,  73 
Contracts  construed  in  favor  of  public,  54, 

147 

Operation  and  control,  141-160 
Rules  and  regulations  of,  150,  151 
Regulations  imposed  by  legislature,  146 
Power  to  fix  rents  for  water,  151 
Entitled   to    rights    of    riparian    owners, 

when,  62 

Not  enjoined  from  taking  water, when,63, 148 
To  store  and  sell  flood-waters,  57,  62,  75 
Right  to  take  works,  848 
Property  in  pipes  and  plant,  847 
Must  supply  all  on  street  where  pipe  is, 

148,  149 

Contract  for  water  to  extinguish  fires,  148 
Right  to  pump  unflltered  water  at  a  fire,  148 
May  enjoin  pollution,  209 

WATERCOURSES  : 

(See  also  APPROPRIATION  ;  IRRIGATION  ; 
RIPARIAN  OWNERS  ;  STREAMS.) 

Defined  and  distinguished,  172a 

Surface-waters  distinguished  from,  171, 172, 
172a 

Underground  currents  compared  with,  259 

Lakes  are,  when,  172 

Ditches  may  be,  172a 

Artificially  deepened  streams  are,  172a 

Springs  are,  when,  172a 

Streams  spreading  out  remain,  172a,  173 

Water  need  not  flow  continually,  172a. 

Flow  increased  by  draining  of  swamps,  184 

Capacity  must  not  be  overburdened,  184 

Drainage  of  surface-waters  into,  184 

Ponds  drained  into,  179 

Riparian  owners  may  interfere  with,  when, 
116 

Diverted  by  companies  building  bridges, 
113 

May  be  used  to  conduct  appropriated  wa- 
ters, 75 

Becomes  boundary,  when,  378 


638 


INDEX. 
References  are  to  section 


WATER  MARK : 

See  HIGH-  and  LOW-WATER  MARK. 

WATER-PIPES  : 

(See  also  CONDUITS;    PIPE-LINES;    SUB- 
WAYS.) 

On  streets  and  ways,  841-860 
.Negligence  in  laying,  etc.,  145 
Too  small  and  accepted  by  city,  148 
Are  "  land,"  when,  5 
Must  not  obstruct  navigable  stream,  242 

WATER  RATES: 

Must  be  reasonable  and  fixed,  151 

Begulation  of,  151 

Fixed  by  government  reviewed  by  courts, 

151 

How  determined  and  fixed,  151 
Reasonableness  of,  how  determined,  151 

WATER-INCH  : 

Defined  or  described,  75 

WATER  RIGHTS  : 

Are  incorporeal  hereditaments,  when,  77 

Of  riparian  owners,  54,  55,  56,  83 

Of  appropriator  are  strictly  usufructuary, 

77 
Appurtenant  to  land  will  pass  with  grant, 

77 

Acquired  by  prescription,  671-700 
Of  miners  in  arid  countries,  75 
For  irrigation  not  superior  to  rights  for 

mining  or  milling,  81 
Conveyance  of,  does  not  convey  land    of 

mill-site,  77 
Conveyance  of,  is  conveyance  of  the  ditch, 

when,  77 
Destroyed  in  making  unnavigable  stream 

navigable,  241 

When  destroyed,  what  is  measure  of  dam- 
ages, 223 

WATERWAYS  : 

(See  also  HIGHWAYS;  ROADS;  STREAMS; 

STREETS.) 
Ownership  of,  444 

WATER- WORKS : 

Easement  in  land,  644 
License  to  build,  664 
Negligent  construction  of,  144 


WATER-WORKS—  Continued. 
For  supplying  cities  are  for  municipal  pur- 

poses, 141 
In  operating,  a  city  is  regarded,  how,  144 

WAY: 

Acquired  by  the  public  across  private  es- 

tates, 683 

Prescriptive  rights  in,  671-700 
Measurements  to,  606 
Rights  in  subways,  841-860 
Telegraph  and  telephones  in  public,  811- 

840 
Over  ice  of  streams  and  ponds,  168 

WELL: 

(See  also  UNDERGROUND  WATER.) 
Impure  waters  in,  264 
Destroyed  by  sewer,  255 

WIDOW  : 

Cannot  tack  possession  to  that  of  husband. 

687 

WILL,  ESTATE    AT: 

See  ESTATE  AT 


WITNESSES  : 

Opinions  of,  as  evidence,  627,  628 
To  determine  boundary,  611-640 
Opinions  of,  as  to  ice-jam,  85 

WORDS  : 

Value  of  small,  in  descriptions,  406-408 
Meaning  of  "  north,"  "  northerly,"  etc.,  603, 
604 

WORKS  : 

Franchises  for  public,  861-887 

Erected  and  operated  under  license,  661- 

670 

For  water  and  ice,  141-170 
Operation  of,  may  be  prevented  and  pollu- 

tion of  stream  stopped  by  injunction,  201 

YEARS  : 

Franchise  for  a  term  of,  848 
YEARS,  ESTATE   FOR  : 

Defined,  18 

No  special  words  necessary  to  create,  18 

Duration  fixed  and  certain,  18 

"  Years  "  is  merely  descriptive,  18 

How  terminated,  18 


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